Thurlow v. Welch

• Citation: 305 Mass. 220,25 N.E.2d 478
• Parties: THURLOW v. WELCH et al.
• Decision Date: 14 February 1940
• Court: United States State Supreme Judicial Court of Massachusetts

305 Mass. 220

25 N.E.2d 478

THURLOW

v.WELCH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 14, 1940.

Exceptions from Superior Court, Suffolk County; Beaudreau, Judge.

Action by Elsie W. Thurlow against Sohier Welch and another, trustees, for personal injuries allegedly sustained by plaintiff while walking in an alleyway near defendants' building. Defendants' motion for entry of verdict under leave reserved was allowed by the trial judge after the jury returned a verdict for plaintiff for $2,000, and plaintiff brings exceptions.

Exceptions overruled.Harry E. Cryan and J. Albert Bradley, both of Boston, for plaintiff.

K. C. Parker, of Boston, for defendants.

COX, Justice.

The plaintiff seeks to recover for personal injuries alleged to have been sustained while walking in an alleyway, in Boston, upon which the defendants' building abuts. The plaintiff agreed that the city had not laid out the alleyway as a public highway. There was evidence that there was no record that it was a public way, that for forty-seven years the street laying out department of Boston had not exercised any jurisdiction over it, and that if it had been dedicated to public use prior to 1846 (see St.1846, c. 203, G.L.[Ter.Ed.] c. 84, §§ 23, 24) and accepted by the city, this would appear of record, but that there was no such record. The defendants seasonably presented a motion for a directed verdict, which was denied subject to their exceptions. The alleged cause of the plaintiff's injuries was the negligence of the defendants, resulting in an unnatural accumulation of snow and ice in the alleyway. The judge instructed the jury that there was no evidence of wilful, wanton or reckless misconduct on the part of the defendant; that, if the way was a mere private way, the plaintiff on the evidence was a bare licensee and could not recover; and that the plaintiff could recover only in case the jury should find that the way was a public way by prescription. No exception was taken to the charge. In answer to a special question submitted to the jury, ‘Did the way upon which the plaintiff fell become a public way by prescription?’ the jury answered: ‘No.’ The case was submitted to the jury which found for the plaintiff, the judge having reserved leave under G.L. (Ter.Ed.) c. 231, § 120, to enter a verdict for the defendants. Thereafter, he allowed the defendants' motion for entry of verdict under leave reserved, subject to the plaintiff's exception.

The plaintiff contends that, although leave was reserved, the judge had no power to act upon it after the jury had returned its verdict, and she relies upon the rule that a general finding imports the finding of all subsidiary facts essential to it, and that such a finding must stand if it be warranted in law upon any possible view of the evidence. It is the general rule that: ‘The test to determine the correctness of the action of the trial judge in ordering the entry of a verdict for a defendant under leave reserved is whether the evidence in its aspect most favorable to the plaintiff could rightly be found to support the contentions essential to the maintenance of his cause of action.’ Holton v. Shepard, 291 Mass. 513, 515, 197 N.E. 460, 461, and cases cited. See Vahey v. Bigelow, 208 Mass. 89, 92, 94 N.E. 249;Kennedy Bros. Inc. v. Bird, 287 Mass. 477, 484, 192 N.E. 73. It long has been the law that ‘if different parts of a verdict are inconsistent with one another so that they cannot stand together, it is the duty of the court to set it aside and grant a new trial, for such a verdict is against the law.’ Lufkin v. Hitchcock, 194 Mass. 231, 233, 80 N.E. 456, 457. Where the jury answers special questions submitted to it, the answers must be considered as parts of the whole verdict, and if the different parts of it are necessarily inconsistent with one another, it is erroneous in law and must be set aside. Reilly v. Boston Elevated Railway, 206 Mass. 53, 55, 91 N.E. 1000;Palumbo v. DiMare, Mass., 12 N.E.2d 741;Copithorn v. Boston & Maine Railroad, Mass., 17 N.E.2d 713. See Duralith Corp. v. Leonard, 274 Mass. 397, 401, 174 N.E. 511.

The statutory provisions now appearing in G.L.(Ter.Ed.) c. 231, § 120, were first enacted by St.1915, c. 185, §§ 1 and 2. Prior to the enactment of this statute, although the trial court had power to grant motions for a new trial, this was as far as it could go in disturbing the verdict. The Supreme Judicial Court, by virtue of St.1909, c. 236, § 1 (see now G.L. [Ter.Ed.] c. 231, § 122), upon exception by the defendant to the refusal to rule that the plaintiff could not recover, and if a verdict was returned for the plaintiff, could, if any exceptions taken by the plaintiff were overruled, direct the entry in the trial court of judgment for the defendant. In the case of Bothwell v. Boston Elevated Railway, 215 Mass. 467, 102 N.E. 665, L.R.A.1917F, 167, Ann.Cas.1914D, 275, said St.1909 was held constitutional, as was said St.1915 in Karlowski v. Kissock, 275 Mass. 180, ...