336 Mass. 760

November 5, 1957

Exceptions overruled. This is an action of contract upon an account annexed to recover for work performed and supplies furnished which was heard in the Superior Court upon the report of an auditor. The judge found for the plaintiff in the sum of $3,813.95. The defendant does not show that the judge was in error in failing to grant the defendant's motion that judgment should be entered for the plaintiff in the sum of $2,268.69 and interest. The contracts were executed and the plaintiff could recover upon an account annexed. Cullen v. Sears, 112 Mass. 299, 308. Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306, 310. Dalton v. American Ammonia Co. 236 Mass. 105, 107.


336 Mass. 760

December 3, 1957

Exceptions overruled. A passenger in a bus of the defendant seeks to recover for personal injuries suffered when the bus stopped abruptly to avoid hitting an automobile which it had been following in a line of traffic, on Purchase Street in New Bedford, at a distance of six to eight feet. The defendant excepted to the denial of its motion for a directed verdict. There was a verdict for the plaintiff. The evidence most favorable to the plaintiff tended to show that other passengers were bumped and a lady was thrown from her seat; that, as the bus approached Kempton Street, the driver turned his head and "looked to his right down Kempton Street . . . and then when he looked forward the car ahead of him had come to a stop and he stopped immediately" applying his brakes "suddenly." Even if the stop was an emergency one, caused by the sudden moving into the line of traffic of a "truck up forward," there was evidence from which negligence could be found from all the circumstances taken together including (a) the inattentiveness of the driver in turning to look down Kempton Street (see Conrad v. Mazman, 287 Mass. 229, 233), (b) the short distance at which the driver was following the automobile ahead of him and (c) the abruptness of the stop, from which the jury might have inferred (see Morton v. Dobson, 307 Mass. 394, 398; Mitchell v. Silverstein, 320 Mass. 524, 526-527; compare McGrath v. Parsons, 312 Mass. 476, 478-479; Clearly v. St. George, 335 Mass. 245, 247-249) a speed somewhat above the ten to twelve miles per hour admitted by the driver. Although the driver's conduct was plainly less subject to adverse appraisal than that considered in the cases next cited, there was evidence requiring submission of the case to the jury. Murphy v. New England Transportation Co. 273 Mass. 275. Jennings v. Bragdon, 289 Mass. 595, 597-598. Vieira v. East Taunton Street Railway, 320 Mass. 547, 549-550 (involving substantially higher speeds than in the present case). See Turner v. Berkshire Street Railway, 292 Mass. 313, 315. Compare Granger v. Lovely, 302 Mass. 504, 507. The combination of circumstances here present distinguishes this case from cases like Niland v. Boston Elevated Railway, 213 Mass. 522, Conley v. Town Taxi, Inc. 298 Mass. 130, 132, and Cuddyer v. Boston Elevated Railway, 314 Mass. 680, 682-685.


336 Mass. 760

December 11, 1957

Interlocutory decree affirmed. Final decree affirmed with double costs of the appeal to the plaintiff. This is a bill to reach and apply one hundred shares of the capital stock of American Telephone and Telegraph

Page 761

Company in payment of a debt owed by the defendant Hernberg (hereinafter called the defendant) to the plaintiff. A decree pro confesso was vacated to allow the defendant to answer late. The defendant's answer set up a pledge of the subject shares to one Borton. The plaintiff's motion to join Borton was allowed and thereafter the bill was taken for confessed against him under Rule 25 of the Superior Court (1954). In the meantime by agreement an interlocutory decree adjudged the defendant's indebtedness to the plaintiff. Thereafter a decree was entered taking the bill for confessed against the defendant, the case "having been duly set down for hearing upon the merits, of which the defendant . . . had due notice . . . and . . .[the defendant] having failed to appear." The defendant, with new counsel, then moved that this decree be vacated and, after hearing, the motion was denied. The final decree recites that the "cause came on to be heard . . . and it appearing that . . . the defendant . . . is the owner of [the] 100 shares . . ." adjudges the indebtedness and appoints a master to sell and apply the shares. The defendant appeals from the denial of the motion to vacate the decree pro confesso and from the final decree. Nothing is shown in respect of the facts, other than the record facts hereinbefore stated, on which the judge exercised his discretion to deny the motion to vacate. No error or substantive basis for an appeal is shown.