Holland v. City of Boston

Massachusetts Supreme Judicial Court

Holland v. City of Boston

100 N.E. 1009, 213 Mass. 560, 1913 Mass. LEXIS 1040

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 11, 1913

StatusPublished

Cited by19 cases

This text of 100 N.E. 1009 (Holland v. City of Boston) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Holland v. City of Boston, 100 N.E. 1009, 213 Mass. 560, 1913 Mass. LEXIS 1040 (Mass. 1913).

Pincite

Opinion

Sheldon, J.

The fact that the plaintiff was operating his machine over the highway and that he had no license under the statute then in force (St. 1903, c. 473, §§ 4, 5, as amended by St. 1905, c. 311), was not necessarily fatal to his right to recover. It was merely evidence of his negligence in the management of [562]*562his machine, to be considered by the jury in connection with the other evidence bearing upon that question. Bourne v. Whitman, 209 Mass. 155, 171.

But if his machine was not registered or to be regarded as registered as required by other sections of the statute, then his conduct in running it upon the highway and against the rope, the stretching of which across the street constituted the defect complained of, was the act of a mere trespasser, who could have against any one no other right than to be exempt from reckless, wanton or wilful injury. Dudley v. Northampton Street Railway, 202 Mass. 443. Feeley v. Melrose, 205 Mass. 329. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 156 et seq. Bourne v. Whitman, 209 Mass. 155, 172. Love v. Worcester Consolidated Street Railway, 213 Mass. 137.

The plaintiff was the general owner of this machine, and it was not registered. But he contended that it was at this time controlled by his employer, one Proctor, and that it carried the distinguishing numbers which had been assigned to Proctor, under the provisions of St. 1907, c. 580, § 2, then in force, and that his machine was therefore in the words of that act, to be “regarded as registered.” The evidence as to this was meagre. It was not shown by direct evidence that Proctor had applied to the highway commission for any distinguishing numbers or marks, or that the commission had taken any action upon such an application. This however seems to have been assumed by the plaintiff, and it could be found that the defendant had acquiesced in such assumption. Uncertain and equivocal as much of the plaintiff’s testimony was, we cannot see that it did more than to raise a suspicion, perhaps a strong suspicion, that he had retained control of his machine, and that any use made of it for Proctor’s benefit was merely by the plaintiff’s permission and not as a matter of rightful control by Proctor. Undoubtedly the facts that the plaintiff was the owner of the machine and had had it registered in his own name, which registration had expired, and that he still retained to a considerable degree the custody, if not the possession of it, taking it to his own home at night, furnished evidence in support of the defendant’s contention. Feeley v. Melrose, 205 Mass. 329. But the plaintiff testified also, that this was a shop car, that it was used as a shop machine, that Proctor’s [563]*563numbers were put upon the car by his (Proctor’s) authority, that the car was supposed to be used by anybody in the shop that wanted to use it, and that the plaintiff had come to that agreement with Proctor. In our opinion the question whether the car was really under the control of Proctor and carried the distinguishing numbers which lawfully had been assigned to him and so was to be "regarded as registered” under the statute, should have been submitted to the jury with the other issues in the case.

Exceptions sustained.

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Sheldon, J.

The fact that the plaintiff was operating his machine over the highway and that he had no license under the statute then in force (St. 1903, c. 473, §§ 4, 5, as amended by St. 1905, c. 311), was not necessarily fatal to his right to recover. It was merely evidence of his negligence in the management of [562]*562his machine, to be considered by the jury in connection with the other evidence bearing upon that question. Bourne v. Whitman, 209 Mass. 155, 171.

But if his machine was not registered or to be regarded as registered as required by other sections of the statute, then his conduct in running it upon the highway and against the rope, the stretching of which across the street constituted the defect complained of, was the act of a mere trespasser, who could have against any one no other right than to be exempt from reckless, wanton or wilful injury. Dudley v. Northampton Street Railway, 202 Mass. 443. Feeley v. Melrose, 205 Mass. 329. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 156 et seq. Bourne v. Whitman, 209 Mass. 155, 172. Love v. Worcester Consolidated Street Railway, 213 Mass. 137.

The plaintiff was the general owner of this machine, and it was not registered. But he contended that it was at this time controlled by his employer, one Proctor, and that it carried the distinguishing numbers which had been assigned to Proctor, under the provisions of St. 1907, c. 580, § 2, then in force, and that his machine was therefore in the words of that act, to be “regarded as registered.” The evidence as to this was meagre. It was not shown by direct evidence that Proctor had applied to the highway commission for any distinguishing numbers or marks, or that the commission had taken any action upon such an application. This however seems to have been assumed by the plaintiff, and it could be found that the defendant had acquiesced in such assumption. Uncertain and equivocal as much of the plaintiff’s testimony was, we cannot see that it did more than to raise a suspicion, perhaps a strong suspicion, that he had retained control of his machine, and that any use made of it for Proctor’s benefit was merely by the plaintiff’s permission and not as a matter of rightful control by Proctor. Undoubtedly the facts that the plaintiff was the owner of the machine and had had it registered in his own name, which registration had expired, and that he still retained to a considerable degree the custody, if not the possession of it, taking it to his own home at night, furnished evidence in support of the defendant’s contention. Feeley v. Melrose, 205 Mass. 329. But the plaintiff testified also, that this was a shop car, that it was used as a shop machine, that Proctor’s [563]*563numbers were put upon the car by his (Proctor’s) authority, that the car was supposed to be used by anybody in the shop that wanted to use it, and that the plaintiff had come to that agreement with Proctor. In our opinion the question whether the car was really under the control of Proctor and carried the distinguishing numbers which lawfully had been assigned to him and so was to be "regarded as registered” under the statute, should have been submitted to the jury with the other issues in the case.

Exceptions sustained.

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Bluebook (online)

100 N.E. 1009, 213 Mass. 560, 1913 Mass. LEXIS 1040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holland-v-city-of-boston-mass-1913.

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