Garrett v. M. McDonough Co.

• Decision Date: 29 March 1937
• Citation: 7 N.E.2d 417,297 Mass. 58
• Parties: GARRETT v. M. McDONOUGH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 58

7 N.E.2d 417

GARRETT

v.M. McDONOUGH CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 29, 1937.

Action of tort in district court by Maurice F. Garrett against the M. McDonough Company, wherein there was a finding for plaintiff in the sum of $325. From an order of the Appellate Division dismissing a report, defendant appeals.

Affirmed.Appeal from Appellant Division of District Court, First District; Davis, Judge.

E. Z. Dymsza, of Boston, for appellant.

A. R. Kingston and B. B. Priest, both of Boston, for appellee.

PIERCE, Justice.

This is an action for negligence whereby, on September 19, 1935, oil was thrown or sprayed upon the plaintiff's house at No. 8 Wolcott Park, in the city of Medford, in this commonwealth.

The evidence in its aspect most favorable to the plaintiff tended to show that the defendant's servants or agents were at the time and place above stated engaged in delivering crushed stone, in connection with the construction or repair of the street upon which the plaintiff lived; that in transporting said stone the defendant was using an automobile truck with a dump body, which was mechanically tilted in the process of unloading the crushed stone; that this tilting was effected by means of an hydraulic lifting device which was activated by means of oil, supplied under pressure through a hose constructed of rubber reinforced with wire and known as a high pressure hose; that this hose led from an oil pump under the cab of the motor truck to the hydraulic lifting device under the dump body; that the pressure of the oil in the hose was equalized by governors so that it was not affected by the speed of the motor; that the equipment was new when purchased by the defendant three or four months prior to the accident; that the hose appeared to be all right; and that on the date and at the place of the accident, while the hydraulic lifting device was in operation, the hose burst in a spot about one inch long, and the light oil used as the hydraulic fluid escaped under pressure in a thin stream and was sprayed upon the house of the plaintiff, upon the awnings and upon the lawn and shrubbery. No direct evidence was introduced by either the plaintiff or the defendant in regard to what caused the hose to brust.

The defendant requested seven rulings which were denied. The judge found for the plaintiff and assessed damages. The defendant, being aggrieved by the denial of its requests for rulings, claimed a report. The judge reported the case to the Appellate Division, which found no prejudicial error and ordered the report dismissed. The case is before this court on the defendant's appeal from the decision of the Appellate Division.

The first request, that upon all the evidence the finding should be for the defendant, was refused properly under Rule 27 of the District Courts (1932) which reads, in part: ‘No review as of right shall lie to the refusal of request for a ruling ‘upon all the evidence’ in a case admitting of specification of the grounds upon which such request is based unless such grounds are specified in the request, and then only upon the grounds so specified.' Holton v. American Pastry Products Corp., 274 Mass. 268, 174 N.E. 663.

The remaining requests, in different forms, are expressed in the second...