Home CATHERINE WRENN, administratrix, vs. CAROLA DOMAR.

5 Mass. App. Ct. 777

February 9, 1977

This appeal raises as the sole issue the question whether there was any combination of circumstances in the evidence from which the jury could have found that the plaintiff's intestate's death was caused by the defendant's negligence. Kelly v. Railway Exp. Agency, Inc. 315 Mass. 301 , 302 (1943). There was evidence from which the jury could have found, among other things: that the decedent's car had gone out of control while traveling westerly on Route 2 and had come to rest in a crosswise position in the outermost eastbound lane; that there was no car in the road for a distance of 1,000 feet westerly of the point where the decedent's car had come to rest; that a driver of an eastbound vehicle would be facing a bright, early morning sun; that the defendant's speed was excessive in the circumstances; and that the defendant should have seen the decedent's car in time to have avoided hitting it. "There is nothing in this case to take it out of the rule that ordinarily where a collision occurs between travelers on a highway the issue as to negligence is for the . . . [jury]." Nash v. Heald, 306 Mass. 518 , 520 (1940).

Judgment affirmed.

Home COMMONWEALTH vs. WARREN DURHAM.

5 Mass. App. Ct. 777

February 9, 1977

Following a jury waived trial the defendant was convicted on two counts of an indictment which charged assault and battery with a dangerous weapon and on another indictment which charged him with deriving support and maintenance from the earnings of a prostitute. He has appealed pursuant to G. L. c. 278, Sections 33A-33G. As the assigned errors argued here are not based upon any exceptions taken at trial, they bring nothing to the court for review. Commonwealth v. Foley, 358 Mass. 233 , 236 (1970). Commonwealth v. Durham, 358 Mass. 808 (1970). Commonwealth v. Cooper, 4 Mass. App. Ct. 782 (1976). The defendant has requested, however, that we examine the evidence to determine whether there "is a substantial risk of a miscarriage of justice" to justify setting aside the findings. Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967). Commonwealth v. Borges, 2 Mass. App. Ct. 869 , 870 (1974). We have reviewed the entire record and are of the opinion that there is nothing to suggest the possibility of any such risk in this case.

Judgments affirmed.

Home RICHARD D. WILLANDER & another vs. DOUGLAS FAUST.

5 Mass. App. Ct. 777

February 9, 1977

The plaintiffs brought this action to recover damages for personal injuries arising out of an automobile accident. The jury returned verdicts in favor of the defendant, and judgment was entered thereon. 1. The judge adequately instructed the jury on the issue of negligence. It was not necessary for him to give the instruction in the exact language requested by the defendant. Campbell v. Shea, 332 Mass. 422 , 425 (1955), and cases cited. See Herrick v. Waitt, 224 Mass. 415 , 416-417 (1916). 2. In finding the minor plaintiff (passenger)

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one hundred percent negligent, the jury may have imputed to him the negligence of the minor plaintiff's father (driver). Although this would have been an incorrect application of the law (G. L. c. 231, Section 85D, inserted by St. 1945, c. 352, Section 1; Bessey v. Salemme, 302 Mass. 188 [1939]; Lilien v. Bibby, 341 Mass. 148 , 151 [1960]), it was not prejudicial to the minor plaintiff because the jury clearly found the defendant to be completely without fault. See Centola v. Driscoll, 4 Mass. App. Ct. 817 (1976).

Judgment affirmed.