1 Mass. App. Ct. 873

February 15, 1974

In this action of tort the plaintiff seeks to recover for injuries sustained as a result of a fall while ascending an escalator operated by the defendant Massachusetts Bay Transportation Authority (M.B.T.A.). The plaintiff's exceptions are to the allowance of directed verdicts for the M.B.T.A. and for the defendant Otis Elevator Company which maintained and repaired the escalator under the supervision of the M.B.T.A. The case is before us on the plaintiff's outline bill of exceptions which reveals no evidence of specific acts or omissions constituting negligence on the part of either defendant. The plaintiff asserts that this is a case for the application of the doctrine formerly denominated res ipsa loquitur applicable only where the plaintiff sustains the burden of showing that under the circumstances, according to ordinary experience, the accident would not have happened except for the negligence of the defendant. Boyle v. Cambridge Gas Light Co. 331 Mass. 56, 63 (1954). Ginsberg v. Metropolitan Transit Authy. 333 Mass. 514, 516 (1956). Evangelio v. Metropolitan Bottling Co. Inc. 339 Mass. 177, 179-180 (1959). The erratic behavior of the escalator suggests causes not shown to be within the exclusive control of the defendants as, for example, manipulation of its movement by unauthorized persons. It cannot be said that the plaintiff's burden has been sustained particularly where, as here, the entire transcript has not been filed (Appeals Court Rule 1:22 [4] [1972]) and the bill of exceptions does not state that it contains all the evidence material to the question presented. Gurll v. Massasoit Greyhound Assn. Inc. 325 Mass. 76, 77 (1949). Schnepel v. Kidd, 332 Mass. 137, 138 (1954). Ginsburg v. Gross, 334 Mass. 709 (1956). On this evidence we cannot say that this case required its submission to the jury. Cf. Swistak v. Paradis, 288 Mass. 377, 380 (1934).

Exceptions overruled.


1 Mass. App. Ct. 873

February 19, 1974

This is an appeal (G. L. c. 231, Section 96) by the plaintiff from an order of the Superior Court which sustained (without leave to move to amend) the defendants' demurrer to the plaintiff's amended declaration in an action of contract or tort which is a companion to the matters considered in Roberts, petr. 362 Mass. 856 (1972). We do not reach the merits.

Page 874

Following the entry of the record on appeal the defendants moved in this court to dismiss the appeal on the ground that the underlying cause of action had been settled by an agreement of the parties which had been reached almost six months prior to the entry of the order sustaining the demurrer. A single justice of this court ascertained that the parties were unable to agree on any facts with respect to the alleged settlement, whereupon this court, acting by a panel of the justices, entered an order remanding the matter to the Superior Court for an evidentiary hearing on and a report of the material facts with respect to any such possible settlement. G. L. c. 231, Section 124. G. L. c. 211A, Section 10, inserted by St. 1972, c. 740, Section 1. A justice of that court, after hearing, found and reported that the underlying cause had been settled and ruled that the plaintiff is barred from further prosecution of the present action by reason of his having executed and delivered to the attorney for the defendants, at the time alleged in the motion to dismiss, a valid release of the defendants from all claims and demands with respect to the underlying cause. The plaintiff has sought no review, timely or otherwise, of those actions of the Superior Court. Although we are at a loss to understand why the defendants failed to bring the settlement to the attention of the Superior Court, we are clear that the action must now be dismissed as moot. Duncan v. Taaffe, 339 Mass. 519 (1959). See also Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 532-535 (1937); Vigoda v. Superintendent of Boston State Hosp. 336 Mass. 724, 726-727 (1958); Reilly v. School Comm. of Boston, 362 Mass. 689, 695-696 (1972).

So ordered.