306 Mass. 617

March 6, 1940

Order dismissing report affirmed. This action of tort to recover compensation for personal injuries and property damage was tried in the Municipal Court of the City of Boston, where there was a finding for the plaintiff. The defendant's motion for a new trial on the ground that the finding was against the evidence, and on other grounds, was denied. Requests for rulings made by the defendant at the hearing on this motion also were denied. A report to the Appellate Division of the refusal of these requests was dismissed and the defendant appealed. The defendant's sole contention in this court is that it was error for the trial judge to refuse to rule as requested by him that the "finding of the trial judge for the plaintiff was against the evidence to such an extent that the denial of the defendant's motion for a new trial, alleging that the finding was against the evidence, amounts to an abuse of discretion." This request for a ruling presented no question of law -- except as hereinafter stated -- which could not have been raised at the trial on the merits, and it does not appear that the judge revived any such question. Ross v. Colonial Provision Co. Inc. 299 Mass. 39, 42. The only question for our consideration is whether the denial of the motion for a new trial would be an abuse of discretion. An examination of the evidence reported discloses no such abuse. Gallagher v. Boston Elevated Railway, 259 Mass. 33. Mantho v. Nelson, 285 Mass. 156. Golba v. Gajewski, 301 Mass. 328.

Home ETHEL H. STAHL, petitioner for leave to enter appeal.

306 Mass. 617

March 8, 1940

Petition dismissed. This is a petition under G.L. (Ter. Ed.) c. 211, Section 11, as amended by St. 1933, c. 300, to enter an appeal of the petitioner from a decree in the case of Ethel H. Stahl vs. Ethel H. Stahl, In re Estate of Dora W. Knight. The petition and the printed record of the case, which has been submitted in support thereof, do not disclose that a substantial question for determination by this court would be presented if leave to enter the appeal should be granted. Lovell v. Lovell, 276 Mass. 10, 11-12.


306 Mass. 617

April 4, 1940

Exceptions overruled. The verdict for the defendant was directed rightly on the opening statement of the plaintiff. The plaintiff seeks in this action of tort to recover compensation for personal injuries sustained by her when she was two months old through being scalded by hot water leaking from a defective hot water bag manufactured by the defendant. According to the opening statement, the hot water bag was used upon the plaintiff by her mother, who had bought it from a dealer other than the defendant; and the hot water bag was in the same condition when used as when purchased and when manufactured. Obviously there was no contractual relation between the plaintiff and the defendant. Moreover, the hot water bag was not an inherently dangerous article. It was harmless in kind and dangerous only by reason of a defect therein. Lebourdais v. Vitrified Wheel Co. 194 Mass. 341. Burnham v. Lincoln, 225 Mass. 408, 409. Barrango v. Hinckley Rendering Co. 230 Mass. 93, 94. Pitman v. Lynn Gas & Electric Co. 241 Mass. 322, 323-324. Giberti v. James Barrett Manuf. Co. 266 Mass, 70, 73. It does not appear that the

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defendant actually knew of the defect. See Lebourdais v. Vitrified Wheel Co. 194 Mass. 341, 343. In the circumstances of this case the maker is not liable to a third person in the position of the plaintiff for negligence in the manufacture of the article. See Guinan v. Famous Players-Lasky Corp. 267 Mass. 501, 511, and cases cited.