Blackmer v. Toohil

• Decision Date: 05 December 1961
• Citation: 343 Mass. 269,178 N.E.2d 274
• Parties: Nellie BLACKMER v. James T. TOOHIL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 274

178 N.E.2d 274

343 Mass. 269

Nellie BLACKMER v. James T. TOOHIL.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 26, 1961.

Decided Dec. 5, 1961.

James C. Donnelly, Jr., Worcester, for defendant.

John M. Hart, Worcester, for plaintiff.

Before WILKINS, C. J., SPALDING, WILLIAMS, WHITTEMORE and KIRK, JJ.

WILLIAMS, Justice.

This is an action of tort to recover for personal injuries received by the plaintiff on March 25, 1957, when she tripped over a hose lying across the sidewalk of May Street, a public way in Worcester. James T. Toohil has by amendment been substituted for the original defendant Toohil's Service, Inc. The case was referred to an auditor whose findings were not final. He found that the plaintiff, a woman almost ninety years of age, was walking along May Street from her residence at number 35. It was about 11 A. M. and the weather was partly cloudy. When she was opposite number 23 she fell over a two inch hose, red in color which extended across the black sidewalk from an oil truck of the defendant, parked at the curb, to the basement of an adjacent house. It had been laid and was being used by the agent of the defendant, who was in the yard, to convey oil from the truck to the said basement. The plaintiff did not see the hose, and fell with sufficient force to fracture her patella.

The auditor found that the defendant's agent was negligent in failing to 'place a warning sign or to adopt some other means of warning the plaintiff of the presence of the hose stretched across the sidewalk which she was then traversing, and * * * that this negligence was the direct contributing cause of the injury suffered by Miss Blackmer.'

He found 'no evidence of any negligence on the part of Miss Blackmer, contributing to the injury which she sustained.' He concluded his report by stating that, as 'a result of the findings above,' he found for the plaintiff in the sum of $4,000.

A motion of the defendant that the auditor's finding for the plaintiff and his findings as to the negligence of the defendant and the absence of contributory negligence of the plaintiff be struck from the report was denied subject to the defendant's exception. The case was subsequently tried to a judge sitting without jury, the only evidence being the auditor's report. The judge denied a motion of the defendant for entry of judgment in his favor and found for the plaintiff in the amount awarded by the auditor. The defendant excepted to the denial of his motions, and to the finding for the plaintiff.

It appears from the report of the auditor that his ultimate findings of negligence and lack of contributory negligence were based on his findings of the subsidiary facts. Moore v. Worcester Insulation Co., Inc., 338 Mass. 44, 46-47, 153 N.E.2d 646. The judge could have drawn different inferences from these facts (Ballou v. Fitzpatrick, 283 Mass. 336, 338, 186 N.E. 668; Cook v. Farm Serv. Stores, Inc., 301 Mass. 564, 567, 17 N.E.2d 890) but seems not to have done so. As his conclusions are reflected in his finding for the plaintiff, he must have found the defendant's agent to have been negligent and the plaintiff free from contributory negligence. The question for decision is whether the subsidiary findings of the auditor warranted such findings by the judge. The point is raised by the defendant's motion to strike the conclusions of the auditor from his report.

There was no finding that the laying of the oil hose across the sidewalk to permit delivery of oil from a truck to an adjacent house and its maintenance there while the agent adjusted the hose in the yard was an improper or illegal use of the public way. See O'Linda v. Lothrop, 21 Pick. 292, 297-298; Judd v. Fargo, 107 Mass. 276; Morris v. Whipple, 183 Mass. 27, 28, 66 N.E. 199; Smith v. Locke Coal...