Gibbons v. Denoncourt
| Decision Date | 28 June 1937 |
| Citation | 9 N.E.2d 633,297 Mass. 448 |
| Parties | RAYMOND J. GIBBONS v. ULRIC DENONCOURT. JOSEPH P. GIBBONS v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 23, 1936.
Present: RUGG, C.
J., CROSBY, FIELD DONAHUE, & LUMMUS, JJ.
Practice, Civil Appellate Division: report, appeal; Requests, rulings and instructions. Negligence, Contributory, Motor vehicle Violation of law, Of bailee. Bailment.
A party was not entitled as of right to a review by the Appellate Division of a district court of the trial judge's refusal to rule "upon all the evidence" if the request was not accompanied by specifications in accordance with Rule 27 of the District Courts (1932).
No error appeared in action by a judge of a district court refusing rulings if the judge as reasons for his refusals stated facts which made the rulings inapplicable and which were warranted by the evidence. By G. L. (Ter. Ed.) c. 231, Section 108, and Rule 27 of the District Courts
(1932) a ruling respecting the admissibility of evidence in a district court cannot be reviewed unless a report was claimed by the objecting party at the time of the ruling.
The granting by a judge of a district court of three requests for rulings in an action for personal injuries, two substantially in the language of G. L.
(Ter. Ed.) c. 231 Section 85, and the third stating, "The presumption of due care is not overcome by the evidence offered by the defendant," did not amount to a ruling that the due care of the plaintiff was presumed throughout the trial and after the facts were shown, and disclosed no error of law.
Findings, warranted by evidence before a judge of a district court hearing several actions together, rendered unprejudicial to the defendant the granting of a request by the plaintiff for a ruling which was erroneously applied to one action.
No prejudicial error was shown in the granting, by a judge of a district court, of a request for a "ruling," which in substance was a request for a finding of fact, if evidence reported warranted the finding.
While a ruling by a judge of a district court, that operation of an automobile in a manner defined in G. L. (Ter. Ed.) c. 90, Section 17, as not "reasonable and proper," was prima facie evidence of negligence, was erroneous, it was not prejudicial to the operator where the record disclosed that a finding of negligence was not based on such operation alone, but was based on and warranted by such operation and other evidence.
A ruling by a judge of a district court hearing an action by the owner of an automobile for damage to it caused in a collision with an automobile of the defendant, that the plaintiff might recover, if he was not present and directing the operation of his automobile, although both operators were negligent, showed no error if there was evidence that the operator of the plaintiff's automobile was a bailee and not an agent of the plaintiff.
FOUR ACTIONS OF TORT. Writs in the First District Court of Eastern Worcester dated May 24, 1935.
The actions were heard together by Lynch, J. Requests for rulings are described in the opinion. The judge granted all the plaintiffs' requests for "rulings." He denied all requests of the defendant for "rulings," assigning no reason for the denial of the first in each action. The denials of all the others were in the form: "I refuse request number . . . because I find," or "as I find," followed by the findings described in the opinion.
There were findings for the plaintiffs in the sums of $300, $4,500, $350, and $3,500, respectively, and a consolidated report to the Appellate Division for the Western District, which was ordered dismissed. The defendant appealed.
The cases were submitted on briefs. C. W. Proctor, for the defendant.
W. W. Buckley, for the plaintiffs.
An automobile, owned by the plaintiff in the first case and operated by the plaintiff in the second case, in which the other two plaintiffs were riding, was in collision with an automobile driven by the defendant in the intersection of Bartlett Street and the "Post Road" in the town of Northborough, between the hours of eleven and twelve o'clock on the night of August 17, 1934. The automobile was damaged and the three plaintiffs in it received personal injuries.
A judge of a district court found for each plaintiff and at the request of the defendant reported to the Appellate Division in a consolidated report his denial of certain requests for rulings filed by the defendant and also his granting of certain requests for rulings filed by the plaintiffs. The Appellate Division ordered the report dismissed.
The report unnecessarily summarizes in great detail the testimony of the many witnesses called by the plaintiffs and by the defendant. The rights of the parties would have been adequately protected, the expense of appeal materially lessened and the record made more intelligible, if the report contained only "a clear and concise statement of so much of the evidence . . . as may be necessary to present the questions of law reported," in accordance with the requirements of Rule 28 of the District Courts (1932) (see page 56).
1. The evidence was conflicting as to many of the facts and circumstances which might be taken into account by a judge in deciding the cases. Where there is a collision of vehicles at the intersection of streets the due care of plaintiffs and the negligence of defendants are generally questions for the determination of the fact finding tribunal. Bresnick v. Heath, 292 Mass. 293, 297, and cases cited. If the defendant and witnesses called by him were believed by the judge the findings should have been for the defendant. It is manifest that their testimony was not believed. There was evidence to warrant the findings that the plaintiffs were in the exercise of due care and that negligence of the defendant was the sole cause of the collision. This need not further be discussed, for the question whether the evidence warranted the findings for the plaintiffs is not before us. The defendant filed no requests for rulings in the case where the owner of the automobile is the plaintiff. In each of the other cases he filed a request for the ruling: which was denied by the trial judge. Since the request was not accompanied by specifications of the grounds on which it was based in accordance with Rule 27 of the District Courts (1932), the defendant was not entitled as of right to a review by the Appellate Division of its refusal. The Appellate Division did not in its discretion review the refusal and no action of the Appellate Division with reference thereto is brought before us by the appeal. Forbes v. Gordon & Gerber, Inc. 298 Mass. 91 , and cases cited.
2. The defendant contends that the judge erred in denying certain requests for rulings filed by him in the case in which the driver of the automobile in collision with the defendant's automobile was the plaintiff.
The second of these requests asked the judge to instruct himself in broad terms that "It was the duty of the plaintiff as he approached the intersection . . . to anticipate that automobiles might be travelling upon the road; to look carefully for their presence and to operate his automobile with due regard for his own safety.
" The judge was not obliged to treat the request as a pure abstraction and was entitled to deal with it as applying to the evidence introduced by the parties. The request dealt with the situation as the plaintiff approached the intersection. The prominent features of the request are a proper looking by the plaintiff and the exhibition of a proper regard for his own safety. Mere anticipation not evidenced by acts would not have been of consequence. The judge in denying the request found that "the plaintiff did look for the approach of a car and saw none."
There was evidence warranting the conclusion that the plaintiff stopped his automobile near the macadam shoulder on the southerly side of the Post Road a few seconds before entering the intersection and then looked, at a time when, as the evidence warranted finding, there was no automobile within the distance of four or five hundred feet approaching the intersection from the left, the direction from which the defendant's automobile later came, and no automobile approaching from the opposite direction within seven hundred feet; that the plaintiff then shifted gears and proceeded across at the rate of speed of eight or ten miles an hour and was two thirds across the intersection and on its northerly side when the left rear part of his automobile was hit by the front of the defendant's automobile. The defendant admitted that the speed of his automobile was thirty-five miles an hour and there was evidence justifying a conclusion that his speed was greater. We think there was no error in the manner in which the judge dealt with the second request of the defendant for a ruling.
The defendant's third request for a ruling in this case was to the effect that it was the duty of the plaintiff to look for the approach of automobiles not only as he approached the intersection but thereafter, and that if "he continued across the road in front of a rapidly approaching car" the plaintiff was guilty of contributory negligence. In denying the request the judge found: "the plaintiff looked for a car and seeing none started to cross the road and was hit by the defendant." There was evidence warranting such finding. In view of the facts found by the judge and the absence of any assumption in the request as to the distance "the rapidly approaching car" was from the intersection at the time the plaintiff "continued across" the request was rightly denied. It could not properly have...
To continue reading
Request your trial