Maki v. New York, N.H.&H.R. Co.

• Decision Date: 28 January 1936
• Citation: 293 Mass. 223,199 N.E. 760
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MAKI v. NEW YORK, N. H. & H. R. CO.

293 Mass. 223

199 N.E. 760

MAKI

v.NEW YORK, N. H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 28, 1936.

Exceptions from Superior Court, Plymouth County; Collins, Judge.

Petition by Fannie Maki against the New York, New Haven & Hartford Railroad Company to vacate a judgment entered against plaintiff. Petition allowed, and respondent brings exceptions.

Exceptions overruled.

J. Minkin, of New Bedford, for petitioner.

P. F. Perkins, of Boston, for respondent.

RUGG, Chief Justice.

This is a petition under G. L.(Ter.Ed.) c. 250, § 15, to vacate a judgment entered against the petitioner under Rule 85 of the Superior Court (1932) for failure to prosecute her action against the respondent. After hearing, the trial judge found that the judgment was caused to be entered through the mistake or neglect of former counsel for the petitioner and not by reason of lack of diligence or fault of the petitioner. He further found that there was a controversy involving conflicting evidence and, being of opinion that justice required that the petitionerbe given an opportunity to have her cause of action fully tried on the merits, allowed the petition.

The respondent states that the single issue presented is whether there is any evidence that the respondent damaged the petitioner by causing water to overflow her land and crandberry crops through the negligent construction or maintenance of its roadbed and culverts.

The granting of a petition of this nature rests largely but not exclusively in the sound judicial discretion of the trial judge. Alpert v. Mercury Publishing Co., 272 Mass. 43, 45, 172 N.E. 223. The petitioner is bound to show that she had a case of sufficient merit to engage the attention of the court. Lovell v. Lovell, 276 Mass. 10, 176 N.E. 210;Manzi v. Carlson, 278 Mass. 267, 273, 180 N.E. 134;Mellet v. Swan, 269 Mass. 173, 177, 168 N.E. 732.

There was evidence tending to show that land of the petitioner was overflowed to her damage, that when she first bought her land there was no such overflowing, that at the time of an overflow her husband explored an embankment and culvert of the respondent about a quarter of a mile lower on a small stream and found that the culvert of the respondent was five or six feet under water and blocked with cinders similar to those lying on the sides and top of the embankment, that the water on the side of the embankment toward the land of the petitioner was eighteen inches higher than that...