Home NELDA SMITHELL vs. CHESTER R. MURPHY.

311 Mass. 745

March 31, 1942

Order dismissing report affirmed. This is an action of tort brought in the Municipal Court of the City of Boston to recover compensation for personal injuries sustained by the plaintiff as a result of being struck by a motor vehicle operated by the defendant on a public way. There was a finding for the plaintiff. A report to the Appellate Division was dismissed and the defendant appealed. There was evidence that the plaintiff at about 2 A.M. on November 27, 1940, alighted from a street car on the outbound track that had stopped almost opposite an intersecting street; that she walked in front of the street car, crossed the inbound track and the street, and was almost on the sidewalk when she was struck by "the center" of a motor vehicle, operated by the defendant, which approached her from her right; and that this motor vehicle knocked her to the ground and dragged her "to the left and to the curb to the right" a distance of fifteen or twenty feet. There was evidence that it was snowing, but also evidence that the motor vehicle was visible to the plaintiff at a distance of one hundred fifty feet. The only question for decision is whether the evidence warranted a finding that the defendant was negligent. It did. It could have been inferred that the defendant, in the exercise of reasonable care, should have been inferred that the defendant, in the exercise of reasonable care, should have seen the plaintiff when crossing the street in time to take precautions, by either stopping or passing behind her, to avoid striking her, and it could have been inferred from the evidence as to the place where the plaintiff was when struck and the manner in which she was struck and dragged that the defendant failed to exercise reasonable care to avoid striking her. Mulroy v. Marinakis, 271 Mass. 421 , 424. West v. Medford, 255 Mass. 266 , McGrimley v. Jameson, 297 Mass. 280 , and Conte v. Mizzoni, 298 Mass. 463 , relied on by the defendant, are distinguishable. There was here more basis for a finding of negligence than the mere happening of the accident.

Home ANNA CARPENTER vs. BURTON E. LORING.

311 Mass. 745

April 10, 1942

Exceptions overruled. This action of tort was brought in the Superior Court. The plaintiff seeks to recover compensation for personal injuries sustained by her on a "porch" or "piazza" on premises of the defendant of which the plaintiff was a tenant. The case was tried by a judge sitting without a jury. The plaintiff requested five rulings, each of them conditioned upon the finding of certain facts by the judge. The judge denied all of these requests, stating that the "evidence presented was insufficient to satisfy me as to any of the facts upon which the plaintiff's requests are based," and found for the defendant. The plaintiff excepted to the denial of these requests. Whatever findings were warranted by the evidence, the evidence did not require the findings upon which the first, second, third and fifth requested rulings were based, and consequently the denial of these requests was not error. Even if

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it is assumed in favor of the plaintiff that evidence by which the defendant was bound required a finding of the fact upon which the fourth request was based, that "the defendant used the piazza where the plaintiff's injuries occurred," the judge was not required by that fact to find, in accordance with the request, "that the piazza remained within the control of the defendant." The fact that the defendant made repairs on the premises did not require a finding that he retained control thereof. See Salsman v. Frisch, 276 Mass. 228 , 230. Consequently, the denial of this request was not error. It may be added, though the question is not raised by any exception, that the evidence did not require a finding for the plaintiff. Upon essential elements of proof the evidence was contradictory or, even where not contradictory, might have been disbelieved.