335 Mass. 768

February 27, 1957

Order dismissing report affirmed. This is an action of tort to recover for injuries sustained by the plaintiff by reason of the alleged negligence of the defendant. There was evidence that about 5:45 P.M. on July 14, 1954, the plaintiff entered the defendant's store in Belmont to purchase something. She walked through the entrance and proceeded straight ahead "when she tripped over a board" which was nailed to the floor at a point eight to ten feet from the entrance. The board, which was about six feet long, three inches wide and one and one half inches in height, was used as a "carriage stop for carriages used by customers in carrying merchandise." The plaintiff testified that there were "no carriages and nothing . . . to warn a customer . . . of the board . . . [which was] of similar appearance in color to the floor." The judge made brief findings of fact which included a finding that "the defendant was not negligent." He denied the plaintiff's first, fourth, and seventh requests for rulings which in substance asked him to rule that a finding for the plaintiff was warranted. A report to the Appellate Division was dismissed, and the plaintiff appealed. There was no error. We assume in the plaintiff's favor, without deciding, that the evidence warranted a finding for the plaintiff. If so, the requests in question ought to have been given unless they were made immaterial by the judge's findings. Liberatore v. Framingham, 315 Mass. 538, 541-542. Here the specific finding that the defendant was not negligent rendered the requested rulings immaterial. The case falls within the authority of such cases as Strong v. Haverhill Electric Co. 299 Mass. 455, Himelfarb v. Novadel Agene Corp. 305 Mass. 446, 448, Connell v. Maynard, 322 Mass. 245, and Horton v. Tilton, 325 Mass. 79.

Home THERESA FOLEY & another vs. MIDDLESEX & BOSTON STREET RAILWAY COMPANY (and a companion case).

335 Mass. 768

March 1, 1957

Exceptions overruled. These are actions by a minor plaintiff to recover for personal injuries and by her father for consequential damage resulting from a collision of a bus of the defendant railway company in which the minor plaintiff was a passenger with an automobile operated by the defendant Knowlton. The cases were consolidated for trial and in each there was a verdict for the defendant. The only exception of the plaintiffs was to the admission of testimony as to the earnings of the minor plaintiff after her accident. The evidence related solely to the issue of damage, and in view of the jury's finding on liability was, if improperly admitted, harmless error. See Furbush v. Connolly, 318 Mass. 511, 512; Ferris v. Turner, 320 Mass. 555, 558.


335 Mass. 768

March 22, 1957

Appeal dismissed. This is a petition by eight of nine defendants in an action by MacNeil Bros. Company against State Realty Company of Boston, Inc., and others, appearing specially, for the discharge of an attachment by trustee process of the goods, effects and credits of three of their number, Messrs. Fox, Orlov and Cowin, in the hands and possession of First National Bank of Boston. G. L. (Ter. Ed.) c. 223, Section 114, as appearing in St. 1943, c. 234, Section 2. Although no one of the defendants has been served with process the action was entered in the Superior Court on the first Monday of December, 1954. Following a motion to dismiss, judgments were entered in the principal action for Fox,

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Orlov and Cowin as of February 7, 1955. All petitioners filed a discontinuance of their petition "without prejudice" on March 4, 1955. On March 26, 1956, the respondent (plaintiff in the original action) moved for judgment on the discontinuance. The motion was denied and the petition ordered dismissed as matter of law. From the denial of the motion and the dismissal of the petition the respondent appealed. A motion to dismiss these appeals was allowed and the respondent appealed from the order of dismissal. This appeal is not properly before us. It was from an order entered in a proceeding merely incidental to the principal action which is still pending. Richardson v. Greenhood, 225 Mass. 608. Weiss v. Balaban, 315 Mass. 390, 393.

(The rescript in each of the three companion cases reads: Appeal dismissed. See "brief statement of the grounds and reasons of the decision" accompanying the companion case decided herewith. -- REPORTER.)