RUTH SUTHERLAND vs. OTIS A. MCGEE.

COUNIHAN, J. This action comes here upon an appeal by the plaintiff from an order of a majority of the Appellate Division of the Municipal Court of the City of Boston vacating a finding for the plaintiff and directing the entry of judgment for the defendant.

It is an action of tort for personal injury and property damage arising out of a rear end collision between an automobile operated by the plaintiff and an automobile operated by the defendant on Washington Street, Dorchester. The answer of the defendant was a general denial and contributory negligence.

The defendant duly filed three requests: -- "1. The plaintiff has failed to show by a fair preponderance of the evidence that her injury was caused through the negligence of the defendant. 2. The plaintiff was contributorily negligent. 3. The doctrine of res ipsa loquitur does not apply to rear end collisions." The judge denied all the

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requests and found for the plaintiff. In passing on request numbered 3 he ruled, "inapplicable as I find on the facts that the defendant was negligent in the operation of his motor vehicle. As a proposition of law the statement of law is correct." The defendant duly claimed a report from the denial of his requests.

The report contains a summary of the testimony of the parties.

The findings of the judge must be sustained if the evidence reported considered in its aspects most favorable to the plaintiff supports them.

It has been said, "Evidence of the happening of a collision between the two motor vehicles -- even if a rear-end collision -- without evidence of the circumstances under which it happened is not proof of negligence of the operator of either of them. . . . Slight evidence of the circumstances, however, may place the fault." Hendler v. Coffey, 278 Mass. 339, 340. Jennings v. Bragdon, 289 Mass. 595, 597.

Here the evidence in the report discloses that the plaintiff was proceeding on Washington Street at a rate of speed of about five miles an hour and that she pulled in to park on the right side of the street. When the right front wheel of her automobile was about two feet from the curb, her automobile was struck in the rear by the automobile operated by the defendant. It was raining and the surface of the street was wet. The defendant's automobile was proceeding along Washington Street about fifteen feet behind the plaintiff at a speed of between ten and fifteen miles an hour. There was no obstruction to the view of the defendant.

On this evidence the judge could reasonably find that the defendant with an unobstructed view was negligent in failing to observe, or in failing to stop, or in driving too fast or too near the plaintiff's automobile on a street the surface of which was wet, when it was raining. Jennings v. Bragdon, 289 Mass. 595, 597-598.

By reason of G. L. (Ter. Ed.) c. 231, Section 85, as appearing in St. 1947, c. 386, Section 1, contributory negligence is a matter of affirmative defence to be proved by the defendant.

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This presented a question of fact for the judge and we cannot say on the evidence that his ruling as to it was wrong.

It is to be noted that the report does not state that it contains all the evidence material to the questions reported. Rule 29 of the Municipal Court of the City of Boston (1940) as amended. [Note 1] It may well be that there was other evidence at the trial which persuaded the judge to find and rule as he did. Compare Hall v. Smith, 283 Mass. 166, 167; Cincevich v. Patronski, 304 Mass. 679.

Order of Appellate Division reversed.

Judgment for the plaintiff on the finding of the trial judge.