Connell v. Maynard
| Decision Date | 05 January 1948 |
| Parties | CONNELL et al. v. MAYNARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Action by Thomas B. Connell, Jr., and another against Forrest J. Maynard to recover for injuries sustained by the named plaintiff, and for consequential damages, as result of the named plaintiff being struck by an automobile operated by defendant. After dealing with ten requests for rulings presented by the plaintiffs, the judge found for the defendant. From an order dismissing plaintiffs' report to the appellate division, the plaintiffs appeal.
Order affirmed.Appeal from District Court, east Norfolk County; Halloran, Judge.
Before QUA, C. J., and LUMMUS, DOLAN, WILKINS, and SPALDING, JJ.
S. E. Aloisi, of Boston, for plaintiff.
R. F. Barrett, of Quincy, for defendant.
This is an action for personal injuries to a boy three and one-half years old, with a count for consequential damages (Clouatre v. Lees, 321 Mass. 679, 75 N.E.2d 242), brought in a District Court because of injuries sustained by the minor plaintiff when struck on June 14, 1946, by an automobile operated by the defendant. There was evidence that the defendant, who was operating his automobile at a speed of thirty-five or forty miles an hour, about ten or twelve feet from his right hand side of the road, saw a group of children with their backs turned to him, about one hundred feet ahead, playing beside the road to his right. He did not slow down until he felt a thud, stopped his automobile, and saw the plaintiff being picked up. The plaintiff was in the custody of an eleven year old cousin. The accident happened in the daytime, and there was nothing to obstruct the defendant's view of the children.
After dealing with ten requests for ruling presented by the plaintiffs, the judge found for the defendant. A report to the Appellate Division was dismissed, and the plaintiffs appealed.
In this court the plaintiffs argued only their first request, which was that ‘upon all the evidence, a finding for the plaintiffs is warranted.’ By so doing, they waived all their other requests. Commonwealth v. Gale, 317 Mass. 274, 276, 57 N.E.2d 918.
We assume that the evidence warranted a finding for the plaintiffs. If so, the first request of the plaintiffs, which was of the sort with which this court first became familiar in Bresnick v. Heath, 292 Mass. 293, 298,199 N.E. 175, ought to have been given unless that request was made immaterial by findings upon...
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Alholm v. Town of Wareham
...that are left so doubtful that there is no preponderance either way are not proved in the legal sense.' Connell v. Maynard, 322 Mass. 245, 246, 76 N.E.2d 642, 643 (1948). See Chase v. Roy, 363 Mass. 402, 294 N.E.2d 336 (1973); LeBlond v. Finerty, 351 Mass. 713, 223 N.E.2d 799 (1967); Falvey......
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...Nat'l Stores, Inc., 335 Mass. 768, 140 N.E.2d 466 (1957). Horton v. Tilton, 325 Mass. 79, 88 N.E.2d 905 (1949). Connell v. Maynard, 322 Mass. 245, 246, 76 N.E.2d 642 (1948). Himelfarb v. Navadel Agene Corp., 305 Mass. 446, 447--449, 26 N.E.2d 320 (1940). Strong v. Haverhill Elec. Co., 299 M......
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...Electric Co., 299 Mass. 455, 13 N.E.2d 39, Himelfarb v. Novadel Agene Corp., 305 Mass. 446, 448, 26 N.E.2d 320; Connell v. Maynard, 322 Mass. 245, 76 N.E.2d 642, and Horton v. Tilton, 325 Mass. 79, 88 N.E.2d Order dismissing report affirmed. ...
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