3 Mass. App. Ct. 726

March 26, 1975

This is an action of tort for personal injuries incurred by the plaintiff when struck by the defendant's streetcar. An auditor found that the operator of the streetcar was not negligent but that the plaintiff was. The case was subsequently tried to a jury, who returned a verdict for the plaintiff. The defendant excepted to the denial of its motion for a directed verdict. There was evidence from which the jury could have found that the defendant's streetcar was traveling on the inbound track of a double track line when the operator observed the plaintiff near the street curbing to the operator's left, that the operator next observed the plaintiff on or near the outbound track and that the operator then sounded a bell warning and made a hand signal for the plaintiff to cross in front of the streetcar. It was for the jury to determine the negligence of either or both of the actors. Compare Cuddy v. Boston Elev. Ry. 208 Mass. 134, 135-136 (1911); Sullivan v. Boston & Maine Ry. 242 Mass. 188, 192 (1922). Contrast Hebert v. Massachusetts Bay Transp. Authy. 1 Mass. App. Ct. 670 (1974). The judge's charge as to the prima facie effect of the auditor's report was appropriate and proper. G. L. c. 221, Section 56, as then in effect.

Judgment on the verdict.

Home JOHN H. BARRETT, INC. vs. JOSEPH RUGO, INC. & another. [Note 1]

3 Mass. App. Ct. 726

March 27, 1975

1. As we read the master's subsidiary findings (see Wormstead v. Town Manager of Saugus, 366 Mass. 659, 660-661 [1975]), the rain water leader was properly constructed by the plaintiff but subsequently became clogged without fault on the plaintiff's part. As the plaintiff was under no contractual obligation to repair the subsequent damage to its work, Rugo, by ordering the plaintiff to perform the necessary remedial work, became liable for the fair and reasonable value of that work when it was completed. Compare McGovern v. Salem, 214 Mass. 358, 362 (1913); M. L. Shalloo, Inc. v. Ricciardi & Sons Constr. Inc. 348 Mass. 682, 684-686 (1965). It mattered not that the master was unable to identify the person who had actually damaged the work. 2. The plaintiff's recovery on "Pool-Item 2" was justified on the ground that the plaintiff and Rugo's composed their dispute as to the controlling contractual provisions by Rugo's agreeing to pay the plaintiff ("submit all invoices to this office") for the remedial work

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which Rugo ordered the plaintiff to (and which it did) perform. Compare McGovern v. Salem, 214 Mass. 358, 362-363 (1913). See also Metro Insulation Corp. v. Leventhal, 1 Mass. App. Ct. 213, 218 (1973).

Judgment affirmed.


[Note 1] The Aetna Casualty & Surety Company.