Home F. P. BATTERY RESEARCH CORPORATION vs. MAJOR MACHINE CORP.

342 Mass. 780

May 1, 1961

Exceptions overruled. In this action of contract, originally in several counts which were reduced by waiver after trial without jury to one count based on an oral contract, the defendant excepts to (1) the dispositions of requests for rulings, (2) rulings on evidence, and (3) the denial of a motion for new trial on the ground of newly discovered evidence. A general finding for the plaintiff was based on considerable written and oral evidence which we have examined. It is not a case where the documentary evidence is conclusive. See Meteor Prod. Co. Inc. v. Societe d'Electro-Chemie et d'Electro-Metallurgie, 263 Mass. 543 , 547-548, and cases cited. On a reasonable view of the evidence, including rational inferences therefrom, the finding for the plaintiff was at least permissible. Bowers v. Hathaway, 337 Mass. 88 , 89. (1) The exceptions to rulings fail because they were (a) directed to counts which were waived after the requests were filed, or (b) based on a specific fact expressly not found by the judge, or (c) requests for findings of fact, or (d) concerned with the legal effect of a portion of the evidence, or (e) not argued. (2) We perceive no error in the rulings on evidence and especially on matters relating to the count on which recovery was based. (3) The denial of the motion for a new trial on the ground of newly discovered evidence was not erroneous. The judge's discretion was soundly exercised for the reasons stated in Sharpe, petitioner, 322 Mass. 441 , 444, and DeLuca v. Boston Elev. Ry. 312 Mass. 495 , 497, and cases cited.

Home JOHN TURNER & another vs. NORMAN ESTABROOKS & another.

342 Mass. 780

June 5, 1961

Exceptions overruled. In this action of tort the plaintiffs are a minor and his father. The defendants are likewise a minor and his father. The minor plaintiff was hurt by a tractor operated by the minor defendant and owned by his father. The plaintiff father seeks consequential damages. At the time the minors were about fourteen years of age and were friends. The judge directed verdicts for the defendants. The plaintiffs concede that there was no evidence of gross negligence. They rely upon such cases as Taylor v. Goldstein, 329 Mass. 161 , and urge that the minor plaintiff was an invitee, as he was present for the purpose of conferring a benefit in the performance of something in which the defendants had an interest. There was no error. It could not have been found that the minor plaintiff was other than a social guest not entitled to recover for ordinary negligence. The case is governed by such cases as Comeau v. Comeau, 285 Mass. 578 , O'Brien v. Shea, 326 Mass. 681 , and Pandiscio v. Bowen, ante, 435.

Home CHARLES BURNETT vs. HUBBARD-HALL CHEMICAL COMPANY & another.

342 Mass. 780

June 5, 1961

Exceptions overruled. In this action of tort for negligence there was a verdict for the plaintiff. The sole question is whether the judge was in error in denying the defendants' motion for a directed verdict. The defendant Wheeler was a truck driver employed by the defendant Hubbard-Hall Chemical Company. At the request of Wheeler, the plaintiff agreed to help unload bags of lime which had been sold and were being delivered to a store in which the plaintiff was a salesman and manager. The plaintiff was conferring a benefit on the defendants and

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thus would be entitled to recover if he could show ordinary negligence on their part. Jackson v. Queen, 257 Mass. 515 . Taylor v. Goldstein, 329 Mass. 161 , 163. The jury might reasonably find that Wheeler was negligent in piling the bags of lime ten rows high, each bag weighing about fifty pounds, in such fashion that "there was nothing placed against these bags nor were they crisscrossed." The jury could draw a rational inference that the bags were all stacked in the same direction and that this was a negligent way to pile the bags. See Howes v. Kelman, 326 Mass. 696 , 696-697. The jury would be warranted in finding further that the way in which the bags were piled was the cause of the bags toppling and pinning the plaintiff against the side of the truck causing him injury. Whether the risk involved in taking bags from the pile stacked by Wheeler was or should have been obvious to the plaintiff and whether the plaintiff assumed any risk were questions for the jury. Meehan v. Gordon, 307 Mass. 59 , 63.