Lukiwesky v. Kuporotz

• Decision Date: 29 June 1933
• Citation: 186 N.E. 560,283 Mass. 524
• Parties: LUKIWESKY v. KUPOROTZ (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 524

186 N.E. 560

LUKIWESKY

v.KUPOROTZ (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

June 29, 1933.

Exceptions from Superior Court, Norfolk County; Burns, Judge.

Actions by William Lukiwesky and by Michael Lukiwesky against Martin Kuporotz. Judgments for defendant, and plaintiffs bring exceptions.

Exceptions overruled.

R. Clayton and L. Lebowitz, both of Boston, for plaintiffs.

C. C. Petersen and E. C. Mower, both of Boston, for defendant.

PIERCE, Justice.

These are two actions of tort. In the first action the plaintiff, seven and one-half years of age, seeks to recover damages for personal injuries sustained on August 15, 1931, when an automobile owned and operated by the defendant collided with him. The second action is brought by the father of the plaintiff in the first action to recover damages sustained in consequence of the alleged negligence of the defendant in the first action. In each action the defendant for answer filed a general denial and alleged contributory negligence of the plaintiff in the first action.

In the Superior Court in accordance with an agreement of the parties the cases were referred to an auditor, whose findings of fact in the first action were to be final. Both cases were heard by the auditor and on August 30, 1932, he filed his report. He found that the defendant was the operator of the automobile which came in contact with the plaintiff and caused the injuries complained of; that the defendant, at the time of the accident, was operating his automobile at a speed of thirty-five miles an hour through a business section of the town, over a straight road forty-two feet wide, with no other traffic on the highway to hinder his view, or prevent him from seeing the plaintiff; that the defendant in these circumstances should have seen the plaintiff and slowed down upon approaching the plaintiff, a pedestrian on the highway, as he was required to do by statute; that the defendant was negligent in the operation of his automobile; and that the contact with the plaintiff could have been avoided. His findings relativeto the contributory negligence of the minor plaintiff are that the approaching automobile was first seen by the plaintiff at least one hundred and eighty feet away; that the plaintiff paid no further attention to it until it was actually in contact with his person; that the plaintiff could have seen and watched the progress of the automobile during the entire time he was crossing the street; that the accident happened in a business section of the town where vehicles might be expected to pass constantly; that the plaintiff did not exercise the degree of care for his own safety ordinarily expected in children of his age; that he was negligent, and such negligence contributed to the injuries for which he seeks to recover in this action.

The plaintiff in each action filed a motion to recommit the cases to the auditor for the following purposes: (1) To find for the plaintiff; (2) To assess damages; and (3) To expunge the finding for the defendant. In each case the defendant filed a motion ‘that judgment may be entered for the defendant in accordance with the Auditor's Report.’ On January 4, 1933, the above motions were heard in the Superior Court. The plaintiffs' motions to recommit to the auditor were denied; the plaintiffs' reservation of rights to introduce further evidence and the claim for jury trial were ordered stricken from the files and records; and the defendant's motion for judgment in each case was allowed. The plaintiff duly saved exceptions to the denial of the motion to recommit and to the allowance of the defendant's ‘motions for judgment and to the finding for the defendant.'

The report of the auditor in the case at bar is in effect a case stated. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 181 N. E. 219;Prendergast v. Sexton (Mass.) 184 N. E. 363;Zarthar v. Saliba (Mass.) 185 N. E. 367. The contention of the plaintiff is that ‘the finding of the auditor that the plaintiff was guilty of contributory negligence is inconsistent with the subsidiary facts found and is, at best, an unwarranted inference which is plainly wrong.’ The facts as found by the auditor are as...