Paulino v. Town of Concord
| Decision Date | 05 April 1927 |
| Citation | 259 Mass. 142 |
| Parties | BOONE R. PAULINO v. TOWN OF CONCORD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 14, 1927.
Present: RUGG, C.
J., BRALEY, PIERCE CARROLL, & WAIT, JJ.
Practice, Civil Report.
The Superior Court has no authority to report evidence, at a trial in that court, to this court "for determination whether the evidence warranted the submission of the case to the jury upon the question of the defendant's liability" under a stipulation by counsel that, if the evidence warranted the submission of the case to the jury on the question of liability, judgment was to be entered for the plaintiff in a certain sum and if the evidence did not so warrant, judgment was to be entered for the defendant, where there has been no verdict no finding of fact, no agreement as to the material facts, and no ruling of law by the trial judge.
The driver of a motor truck, who was injured when in a drizzling rain the truck skidded from a macadam surface of a public way in a town and over street car rails between which gravel was worn smooth by other travel, and one of its wheels dropped into a depression made by a catch basin for surface water beyond the rails, cannot maintain an action against the town under G.L.c. 84, Section 15.
TORT for personal injuries alleged to have resulted from a defect in a public way in the town of Concord. Writ dated September 12, 1924.
Proceedings in the Superior Court, and the terms of a report to this court by Thayer, J., are stated in the opinion.
W.I. Badger, for the plaintiff. S. Hoar, for the defendant.
This is an action of tort to recover for personal injuries alleged to have been received by the plaintiff on November 3, 1922 through a defect in a highway. G.L.c. 84, Sections 15-26.
Material evidence is set forth to the effect that the highway was macadamized to the width of eighteen to nineteen and one half feet with a high crown, with a curve to the right as the plaintiff was driving, and higher on the right than on the left. At the right and immediately adjacent to the macadam were tracks for a single trolley car line, between the rails of which the gravel was worn smooth by other travel. Further to the right and along the edge of the sidewalk was a line of trees. Between the sidewalk and the car tracks there was grass. Two feet out from the line of trees was a catch basin to collect the surface water of the road. The distance between the car rails was four and seventy-one one hundredths feet, and from the outside car rail to the edge of the catch basin, five and two tenths feet, and from the catch basin to the line of trees, two feet. Estimates as to the depth of the grating of the catch basin below the road level varied from twelve to eighteen inches. The plaintiff during a drizzling rain was injured by the skidding of the motor truck which he...
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Zwick v. Goldberg
...neither motion could furnish an adequate basis for a report to this court. Nagle v. Driver, 256 Mass. 537, 152 N.E. 740;Paulino v. Concord, 259 Mass. 142, 155 N.E. 870;Pillsbury Flour Mills Co. v. Bresky, 263 Mass. 145, 160 N.E. 447. The case is distinguishable from cases in which verdicts ......
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Zwick v. Goldberg
... ... adequate basis for a report to this court. Nagle v ... Driver, 256 Mass. 537 ... Paulino v. Concord, 259 ... Mass. 142 ... Pillsbury Flour Mills Co. v. Bresky, 263 ... Mass. 145. The case ... ...
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...in this court. A verdict for the defendants was ordered by the court. Nagle v. Driver, 256 Mass. 537, 152 N. E. 740, and Paulino v. Concord, 259 Mass. 142, 155 N. E. 870, are to be distinguished because in these cases there was no existing verdict, while here there was a verdict which might......