Sylvester v. Shea
| Citation | 182 N.E. 916,280 Mass. 508 |
| Parties | SYLVESTER v. SHEA. |
| Decision Date | 28 October 1932 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Appeal from Appellate Division of District Courts, Northern District; Edward A. Counihan, Jr., Special Judge.
Action by Frank Sylvester p. p. a. against Timothy T. Shea. From a judgment of the Appellate Division dismissing the trial judge's report, defendant appeals.
Judgment for defendant.
V. L. Scanlon, of Boston, for appellant.
P. C. Borre, of Boston, for appellee.
[1] The report of the trial judge shows that the defendant was backing a one and one-half ton truck from Sumner Street into Sumner Place in Boston, and saw or should have seen a large stone, six or seven inches in diameter and weighing ten or twelve pounds. The left rear tire of the truck came in contact with the stone, squeezing it and throwing it to the sidewalk, where it hit the plaintiff who was passing. The trial judge said: He denied the defendant's request for a ruling that ‘on all the evidence the defendant was not negligent.’ The Appellate Division sustained the trial judge and dismissed the report. The defendant's appeal brings the case here.
Doubt arises as to what ruling the trial judge intended. Even when the conduct of a party is ascertained, the question whether it comes up to the standard of reasonable care prescribed by the law ordinarily must be decided by the tribunal of fact. Only in clear cases can it be ruled as matter of law. Gaynor v. Old Colony & Newport Railway Co., 100 Mass. 208, 212,97 Am. Dec. 96;Lorenzo v. Wirth, 170 Mass. 596, 49 N. E. 1010,40 L. R. A. 347;Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 417, 12 S. Ct. 679, 36 L. Ed. 485. A ruling that the facts of this case amount to negligence as matter of law would obviously be impossible to support, and for that reason it is improbable that the judge intended to make it. He meant, we think, to rule that the evidence warranted a finding that the defendant was negligent, and then to make that finding of fact. Similar obscure language has been interpreted in this way. Swett v. Boyce, 134 Mass. 381, 387;Sartwell v. Humphrey, 136 Mass. 396;Morse, Williams & Co. v. Ellis, 172 Mass. 378, 52 N. E. 540.
Interpreted thus favorably to the decision below, the report shows that there was error...
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Rainault v. Evarts
...191, 192 N.E. 487. But judgment was vacated, and the case was tried anew by a judge without jury. He found and ruled (see Sylvester v. Shea, 280 Mass. 508, 182 N.E. 916) ‘that the assignment to the defendant included whatever interest in any real estate assignor Wernick had; that defendant ......
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Royal Paper Box Co. v. Munro & Church Co.
...the auditor, and a finding by inference from the auditor's report that the statutory basis had in fact been established. Sylvester v. Shea, 280 Mass. 508, 182 N. E. 916;Automatic Sprinkler Corp. of America v. Rosen, 259 Mass. 319, 323, 156 N. E. 693. The judge's conclusion that there was su......
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Miller v. Bolyard, 10790
...... For these reasons the holding in each of those cases does not apply to or control the decision in this case. . In Sylvester v. Shea, 280 Mass. 508, 182 N.E. 916, it appeared that the defendant backed a truck on a street in the City of Boston; that at the time he was moving ......
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Gaw v. HEW Const. Co.
...of the accident and did not constitute a nuisance, and hence also warranted his ultimate findings for the defendant. See Sylvester v. Shea, 280 Mass. 508, 182 N.E. 916. We interpret the words ‘as aforesaid’ to mean that the judge reached his conclusions on the basis alone of the subsidiary ......