Home ZELMIRA L. HUNT vs. GEORGE SOLOMAKOS & another.

310 Mass. 827

November 5, 1941

Order for judgment affirmed. The plaintiff, in this action of tort for negligence brought in the Superior Court, sought to recover compensation for personal injuries sustained by her from tripping over a Christmas tree on a sidewalk on a public way in the city of New Bedford in front of the defendants' store. The case was referred to an auditor whose findings of fact were to be final. Judgment was ordered for the plaintiff and the defendants appealed. G. L. (Ter. Ed.) c. 231, Section 96. Kamberg v. Springfield National Bank, 293 Mass. 24 , 25. The order was right. The auditor found that the trees were on the sidewalk "in violation of the ordinances of the . . . [city] and were the contributing efficient cause of the plaintiff's injury," that "the defendants were negligent," and that the plaintiff was not guilty of contributory negligence. Violation of an ordinance, of this nature, in some circumstances, is evidence of negligence, and may be found to be a cause and not merely a condition of a personal injury. See Milbury v. Turner Centre System, 274 Mass. 358 , 361-363, and cases cited. On all the facts found by the auditor and the proper inferences therefrom (see G. L. [Ter. Ed.] c. 231, Section 126; United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105 , 108-109) liability of the defendants to the plaintiff was established.

Home WALTER I. GIBSON vs. MATTHIAS CAVANAGH.

310 Mass. 827

November 5, 1941

Exceptions overruled. This action of tort to recover compensation for personal injuries, sustained by the plaintiff when as a pedestrian he was struck by an automobile, operated by the defendant, was tried to a jury upon an auditor's report and other evidence including testimony of the plaintiff. There was a verdict for the plaintiff. The defendant excepted to the denial of a motion for a directed verdict for him. His sole contention is that the plaintiff was not in the exercise of due care and for that reason cannot recover in this action. The auditor found that the plaintiff was in the exercise of due care. This finding was evidence for the jury since there were no subsidiary findings so inconsistent therewith as to destroy its evidential value. See Cook v. Farm Service Stores, Inc. 301 Mass. 564 , 565. But even apart from this finding nothing in the facts essential to establish the plaintiff's case on the issue of negligence and no evidence binding on the plaintiff required, as matter of law, a finding that the plaintiff was not in the exercise of due care. The motion was denied rightly.

Home MAY VOWLES vs. MAX SMITH.

310 Mass. 827

November 6, 1941

Exceptions overruled. The plaintiff sought in this action of tort for negligence, brought in the Superior Court, to recover compensation for personal injuries sustained by her as a result of falling on a broken step of a common stairway leading to the cellar. A motion by the defendant for a directed verdict was denied and the defendant excepted. His bill of exceptions states there "was sufficient evidence of negligence of the defendant in causing the plaintiff's fall, the sole question raised by these exceptions being whether on the aspect of the evidence most favorable to the plaintiff there was sufficient evidence to go to the jury on the issue of the plaintiff's due care." This language is inapt. The burden of proof on this issue was on the defendant -- that is, the burden of establishing the contributory negligence want of due care -- of the plaintiff. G. L. (Ter. Ed.) c. 231, Section 85. O'Connor v. Hickey, 268 Mass. 454 , 460-461. The evidence on this issue was testimony of the plaintiff

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by which she was bound. She testified in substance that she knew of the dangerous condition of the step -- the second from the top of the stairway -- and that it was "dark" when she started down the stairway and "she could just barely see the stairs." According to her testimony she went carefully. It could not have been ruled as matter of law that the plaintiff, in the exercise of due care, was bound not to use the stairway, though she knew there was some danger in doing so -- so far as appears she had no other way of reaching the cellar -- or that in the course of using the stairway she failed to exercise due care. See Silver v. Cushner, 300 Mass. 583 , 587, 588. The motion was denied rightly.