Home COMMONWEALTH vs. LOUIS SIANO.

9 Mass. App. Ct. 912

May 6, 1980

1. Upon review of the record, we discern no abuse of discretion by the motion judge (the trial judge having recused himself from acting on the motion for a new trial) in denying the defendant's motion for a new trial based on newly discovered evidence. Such a motion is addressed to the sound discretion of the trial court judge. Commonwealth v. Dascalakis, 246 Mass. 12 , 32-33 (1923). Commonwealth v. Robertson, 357 Mass. 559 , 562 (1970). Commonwealth v. DeChristoforo, 360 Mass. 531 , 542 (1971). Blaikie v. District Attorney for the Suffolk Dist., 375 Mass. 613 , 618 (1978). Commonwealth v. Meuse, 3 Mass. App. Ct. 189 , 192 (1975). Here the judge received affidavits in support of the motion for a new trial and held evidentiary hearings. He made detailed findings, in which he considered the reliability, admissibility and weight of the proffered new evidence, by which the defendant sought to establish that a proof of loss admitted in evidence in his trial for insurance fraud was not genuine. His disposition of the motion "is not to be reversed unless a survey of the whole case shows that his decision, unless reversed, will result in manifest injustice." Sharpe, petitioner, 322 Mass. 441 , 445 (1948). Davis v. Boston Elev. Ry., 235 Mass. 482 , 495-496 (1920). Commonwealth v. Robertson, supra at 562. Commonwealth v. DeChristoforo, supra at 542. Commonwealth v. Cook, 380 Mass. 314 , 321 (1980).

2. The defendant has offered neither reasoning nor authority (see Mass. R.A.P. 16[a][4], as amended, 367 Mass. 921 [1975]) to support his position that the trial judge committed error by disqualifying himself from acting on the motion for a new trial. It is entirely appropriate that a judge disqualify himself in a proceeding in which his impartiality might be questioned. See S.J.C. Rule 3:25, Canon 3(C), 359 Mass. 844 (1971).

Order denying motion for a new trial affirmed.

Home ALFRED BLAKE vs. SPRINGFIELD STREET RAILWAY COMPANY.

9 Mass. App. Ct. 912

May 6, 1980

This case is again before the court following a retrial after our decision in Blake v. Springfield St. Ry., 6 Mass. App. Ct. 553 (1978). The facts are set out in the opinion in that case. 1. The plaintiff claims that the judge erred when he charged the jury on the question of contributory negligence that "[t]he standard that an eight-year-old should be held to is not the standard that you hold an adult to, but you would hold him to the . . . standard of a typical eight-year-old child, that age is one of the circumstances to be considered in determining whether he was negligent or not." The plaintiff had requested an instruction tracking the standard of

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care stated in Mann v. Cook, 346 Mass. 174 , 178 (1963), that a minor plaintiff's conduct "is to be judged by the standard of behavior expected from a child of like age, intelligence and experience." See also Restatement of Torts (Second) Section 283A (1965). When the request was again brought to the attention of the judge at the conclusion of the charge, he responded, "I think I covered it adequately." Although the judge could properly have supplemented his charge by including the requested language, we consider that the word "typical" as used by the judge includes within its scope all of the characteristics of mind which come from intelligence and experience as well as the behavioral patterns of an eight year old child. We do not have before us any of the trial testimony, but we do have the master's report. His description of the game the plaintiff and two other boys had been playing for thirty minutes prior to the accident discloses nothing atypical about the plaintiff when compared to other eight year old children. For all that appears, he had neither special experience nor lack of it relevant to the case; his intelligence was not substandard. We note further that subsequent to the Mann case the Supreme Judicial Court in Reardon v. Baker, 353 Mass. 754 (1967), stated that "[t]he plaintiff is held to the exercise of that degree of care which is reasonably to be expected of a child of his age" and that a few years earlier in Woods v. DeMont, 322 Mass. 233 , 234 (1948), the court stated the standard to be "[t]he due care of a boy of seven years is the care reasonably to be expected of a child of similar age." 2. There is no merit to the plaintiff's remaining issue, and further he is foreclosed from raising it as that question could have been raised in the first appeal. See Levenson v. Brockton Taunton Gas Co., 5 Mass. App. Ct. 883 (1977).

Judgment affirmed.