(DOWNLOAD) "Russell v. Berger. Same v. Kritzman" by Supreme Judicial Court of Massachusetts * eBook PDF Kindle ePub Free
eBook details
- Title: Russell v. Berger. Same v. Kritzman
- Author : Supreme Judicial Court of Massachusetts
- Release Date : January 13, 1943
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 67 KB
Description
LUMMUS, Justice. These are actions of tort to recover for personal injuries and damage to the plaintiff's automobile resulting from alleged negligence of the defendant Kritzman in backing out of a driveway in North Andover on February 10, 1939, an automobile registered in the name of the defendant Berger. There was no evidence that Kritzman was a servant of Berger, but there was evidence that the automobile that collided with that of the plaintiff was not owned by the defendant Berger although it was registered in his name. The Judge instructed the jury, without exception, that if the automobile was properly registered in Berger's name as owner, Berger was not liable, but that if Berger was not the owner and the automobile was illegally registered in his name, Berger was liable irrespective of negligence for permitting an automobile to be operated on the ways of the Commonwealth without being lawfully registered. See G.L. (Ter.Ed.) c. 90, § 9. The plaintiff could, however, have gone to the jury against the defendant Berger under G.L. (Ter.Ed.) c. 231, § 85A, but that point was not mentioned. Legarry v. Finn Motor Sales, Inc., 304 Mass. 446, 23 N.E.2d 1011. In the case against Kritzman, the jury were told that the plaintiff could recover only if Kritzman caused the accident by negligence, and the plaintiff was not shown to be guilty of contributory negligence. Compare G.L. (Ter.Ed.) c. 90, § 9. The jury found specially that the automobile operated by the defendant Krizman was illegally registered in the name of the defendant Berger, and returned a verdict against each defendant. The case is here on exceptions taken by the defendants. In each case there was a first count for negligence causing personal injury, a second count for negligence causing damage to the plaintiff's automobile, and a third count for maintaining a nuisance, to wit, an illegally registered automobile. The answer was a general denial, with an allegation of contributory negligence and an assertion that the plaintiff's automobile was not legally registered. Apparently there was no evidence to support this last assertion. The defendants excepted to the refusal of certain requested instructions. One was as follows: '2. The fact that the car of the defendant, if it be found to be a fact, was illegally registered does not change the plaintiff's duty to be in the exercise of due care.' This was a correct statement of the law. Brown v. Alter, 251 Mass. 223, 146 N.E. 691, 38 A.L.R. 1036; McKenna v. Andreassi, 292 Mass. 213, 216, 218, 219, 197 N.E. 879. But the Judge instructed the jury in accordance with this request that the plaintiff could not recover in either case if found to be guilty of contributory negligence.
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