Runnells v. Cassidy
| Decision Date | 30 October 1940 |
| Parties | FREDERICK J. RUNNELLS v. WILLIAM F. CASSIDY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Negligence Contributory. Practice, Civil, Auditor: findings. Evidence Presumptions and burden of proof.
A finding by an auditor that a plaintiff in an action for personal injuries was in the exercise of due care, not based solely on his subsidiary findings and not inconsistent therewith, required submission of that issue to a jury to be weighed against contrary evidence, and even against the plaintiff's own contrary testimony which was not as to facts of which he alone had knowledge.
A finding by an auditor that the plaintiff was in the exercise of due care when injured was not necessarily inconsistent with a subsidiary finding that, while he "was fully cognizant of the risk incurred by him . . . and hence was bound to be on the alert in looking out . . . for his own safety . . . he nevertheless had reason to expect that he would not be exposed to dangers which could have been avoided" if the defendant had acted without negligence toward him, nor with a subsidiary finding that his attention had been momentarily diverted.
TORT. Writ in the District Court of Springfield dated March 10, 1937. On removal to the Superior Court, the case was tried before Dillon, J., and a verdict was returned for the plaintiff in the sum of $3,150.
The case was submitted on briefs. A. R. Simpson, for the defendant.
H. E. Allen, W.
W. Yerrall, & A.
W. Bettigole, for the plaintiff.
The plaintiff seeks in this action to recover compensation for personal injuries sustained by him while in the performance of his duties as a police officer of the city of Springfield resulting from negligence of the defendant in the course of removing a milk wagon from a hole in a street with the aid of a "towing car." The case was referred to an auditor whose findings of fact were not to be final. The auditor found for the plaintiff.
The case was tried to a jury upon the auditor's report and testimony of witnesses, including the plaintiff and the defendant. There was a verdict for the plaintiff. To the denial of a motion of the defendant for a direction of verdict in his favor, the defendant excepted. The sole contention now made by him is that this motion should have been granted, for the reason that the plaintiff as matter of law on the evidence was guilty of contributory negligence. This contention cannot be sustained.
The burden of proving contributory negligence of the plaintiff was on the defendant. G. L. (Ter. Ed.) c. 231, Section 85. The auditor, however, found affirmatively in express terms "that the plaintiff was in the exercise of due care when this accident happened.
" This ultimate finding did not purport to be based solely upon the subsidiary findings of the auditor and consequently imported findings of subsidiary facts -- not necessarily inconsistent with express subsidiary findings -- sufficient to support the ultimate finding. Murphy v. Smith, ante, 64.
There are no express subsidiary findings of the auditor necessarily inconsistent with the ultimate finding -- or the subsidiary findings imported thereby -- that the plaintiff was in the exercise of due care. There is no necessary inconsistency between this ultimate finding and the finding that while the plaintiff "was fully cognizant of the risk incurred by him in the performance of his official duties on this occasion and hence was bound to be on the...
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...from the dock, shows conclusively a lack of care. Ferrairs v. Hewes, 301 Mass. 116, 119, 16 N.E.2d 674 (1938). Runnells v. Cassidy, 307 Mass. 128, 130, 29 N.E.2d 762 (1940). And considering how sudden was the backward lurch of the truck, any fault of the plaintiff could be found to have con......
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