Home JACOB NOTKIN vs. MORRIS EPSTEIN & another.

335 Mass. 769

March 28, 1957

Exceptions overruled. This action to recover damages for breach of a written contract was heard by a judge and taken under advisement. Later the judge found for the defendants and denied certain of the plaintiff's requests for rulings. The plaintiff seasonably filed a bill of exceptions, which was allowed, but filed no exceptions in writing to any rulings that may have been made in the absence of counsel. See Rule 72 of the Superior Court (1954). The bill of exceptions, not disclosing the saving of any exception in the court below, brings no question of law to this court. Looby v. Looby, 303 Mass. 391 , 392. Commonwealth v. MacGregor, 319 Mass. 462 . Concannon v. Commissioner of Public Safety, 324 Mass. 503 , 508.

Home JOHN R. LAFOLEY & another vs. ALFRED FERBAS.

335 Mass. 769

March 28, 1957

Exceptions overruled. In this action of tort for deceit the judge found for the plaintiff in the amount of $3,151. At the trial the defendant presented nineteen requests, all of which were denied. The defendant excepted to the denial of these requests, "to the judgment ordered, . . . the finding for the plaintiff and to the amount of damages found." There was no error. Sixteen of the nineteen requests asked for findings of fact. "A judge sitting without a jury is not required to act upon requests for findings of fact." Larson v. Jeffrey-Nichols Motor Co. 279 Mass. 362 , 368. The denial of the remaining requests (3, 10 and 19), which could be construed as requests for rulings of law, reveals no error. The third and nineteenth requests were not material, and the tenth request related to an indecisive portion of the evidence. Halnan v. New England Telephone & Telegraph Co. 296 Mass. 219 , 223. The exception to the finding, which was general, presents no question of law. Stowell v. H. P. Hood & Sons, Inc. 288 Mass. 555 . Sreda v. Kessel, 310 Mass. 588 , 589. And that is true of the exception to the amount of damages awarded.

Home MARY L. WATSON, administratrix, vs. JAMES W. WILSON.

335 Mass. 769

April 1, 1957

Verdict entered under leave reserved to stand. Shortly after five o'clock on the wet and rainy afternoon of November 24, 1954, the plaintiff's intestate, referred to as a child or boy but whose age does not appear, was struck and

Page 770

killed by an automobile on Tremont Street in Boston, a public street approximately seventy feet wide. The defendant had driven his truck about fifteen miles an hour down Tremont Street at about the time and place of the accident but from the beginning had denied that he was involved in the accident. A chemist, who was a member of the Boston police department, examined the bumper of the truck and testified there was a "brush mark" on the right side of the bumper that could have been made by cloth of the same material as the clothing which the intestate wore. No part of the intestate's clothing was produced. The medical examiner who examined the body testified that two abrasions on the left forearm could have been made by the front right tire but those marks were two inches apart and they should be only one inch apart if made by the tire. There was testimony of one Mooers, a pedestrian, that he heard a woman shout "Catch that truck," that he got into an automobile and caught up to the defendant's truck, and that one of the occupants of the automobile got out and told the defendant he had struck a boy on Tremont Street. Thereupon the defendant turned around and saw the intestate lying in the street. Mooers did not see the accident and the woman who shouted to him did not appear as a witness. There was no error in entering a verdict for the defendant. If we assume that the death of the intestate was caused by the truck operated by the defendant, see Atlas v. Silbury-Gamble Motors Co. 278 Mass. 279 ; Cochrane v. Great Atlantic & Pacific Tea Co. 281 Mass. 386 ; Smith v. Rapid Transit Inc. 317 Mass. 469 , the evidence was insufficient to show it was due to the negligence of the defendant. Jabbour v. Central Construction Co. 238 Mass. 453 . Nager v. Reid, 240 Mass. 211 . Rizzittelli v. Vestine, 246 Mass. 391 . Whalen v. Mutrie, 247 Mass. 316 . McGrimley v. Jameson, 297 Mass. 280 . Luvera v. DeCaro, 317 Mass. 222 . Cleary v. St. George, 335 Mass. 245 .