333 Mass. 769

December 13, 1955

Decree affirmed with double costs against the appeallant. This is an appeal from a decree of the court below dismissing as intended for the purpose of delay an appeal entered in that court from a decree after rescript from this court. Cabot v. Corcoran, 332 Mass. 44. The decree after rescript carefully followed the rescript of this court and there was no error in the decree dismissing the appeal from it.


333 Mass. 769

December 29, 1955

Exceptions overruled. In this action of tort the plaintiff contends that, while a customer in the defendant's store, she was caused to fall and was injured by the presence on the floor of a substance which the defendant negligently failed to remove. The judge directed a verdict for the defendant, and the plaintiff excepted. There was no error. Detailed factual statements in cases of this sort do not benefit our jurisprudence. We think that the plaintiff did not show that she fell because of stepping on a substance which the defendant negligently failed to remove. Newell v. Wm. Filene's Sons Co. 296 Mass. 489. Foley v. Hotel Touraine Co. 326 Mass. 742. Kelleher v. Dini's, Inc. 331 Mass. 217.


333 Mass. 769

January 3, 1956

Order dismissing report affirmed. The plaintiff in this action of tort seeks to recover for personal injuries alleged to have been sustained as a result of being struck by a bus of the defendant. The judge made brief findings of fact and ordered judgment for the defendant. A report to the Appellate Division was dismissed and the plaintiff appealed. The questions for decision arise out of the judge's denial of the plaintiff's requests numbered 1, 2, 3, and 5. We need not concern ourselves with the fifth request. Viewed as a request for a ruling of law it assumed the existence of facts which the judge did not and was not obliged to find. Cameron v. Buckley, 299 Mass. 432, 434. If treated as a request for a finding of fact it was properly denied. Dolham v. Peterson, 297 Mass. 479, 481. The first and third requests in effect asked for rulings that a finding for the plaintiff was warranted. The second request asked the judge to rule that a finding was warranted that the plaintiff was not guilty of contributory negligence. No prejudicial error has been shown. It is apparent from reading the findings of the judge that she concluded

Page 770

that the plaintiff had not established any negligence on the part of the defendant and that she refused the requests just discussed as inapplicable because of what she had found. See Liberatore v. Framingham, 315 Mass. 538, 544. True, the crucial finding in the case was couched in the language of a ruling, but we are satisfied that it was intended to be a finding of fact. From a reading of the decision of the trial judge we are satisfied that the finding for the defendant was not due to the application of incorrect principles of law.