Exceptions overruled. Subject to the defendants' exception the judge permitted an eyewitness to testify that the vehicle of the defendant Malvina Sulkoski, while backing up eight to ten feet, was moving at a speed of ten to fifteen miles an hour. There was no error. It was for the judge to determine, as a preliminary matter, the capacity and opportunity of the witness to make the observation, and for the jury to weigh it if admitted. Davidson v. Beacon Hill Taxi Serv. Inc. 278 Mass. 540 , 541-542. Logan v. Goward, 313 Mass. 48 , 51. Giles v. Barbosa, 338 Mass. 793 , and cases cited. The exception is frivolous. Double costs are to be paid by the defendants. G. L. c. 211, Section 10.
[Note 1] The companion cases are Lawrence Snow vs. Frank Sulkoski & another, Anthony W. Pyzynski vs. Frank Sulkoski & another, and Steven Westerman & others vs. Frank Sulkoski.
Order of Appellate Division affirmed. These two actions before us on a consolidated report are for damage to property resulting from a fire (near an incinerator chimney) in an apartment house in which the plaintiffs were tenants. The trial judge in the Municipal Court of the City of Boston denied the defendant's request for a ruling that "[t]here was no evidence of any negligence . . . of the defendant which . . . contributed to the damage." The Appellate Division correctly took the view, for reasons stated in its opinion, that there was no such evidence. The district fire chief testified in substance that he was not able to "observe anything that might cause excessive heat, or any defect in the incinerator or chimney which would indicate that they were improperly maintained or used." This is not a case in which negligence could have been inferred from the circumstances.
[Note 2] The companion case is by Elizabeth Flannery against the same defendant.
Decree affirmed. This is an appeal from a decree of the Superior Court dismissing the claimant's claim for compensation. The decree was based upon a decision by the single member which was affirmed by the reviewing board. The single member found that the claimant, a registered nurse, was specifically called by a patient to render private duty or special nursing care to that patient in the insured hospital and that the claimant was paid directly by the patient and not by the hospital. The claimant sustained a back injury while rendering nursing service to that patient. The claimant had worked as a private duty nurse at the insured hospital for about five years. At times she secured her jobs through the State nurses directory and at other
times by calling the insured hospital. Her rate of pay was in keeping with rates set by the Massachusetts State Nursing Association schedule and she was paid for her services directly by the patient at such times as were mutually convenient. The single member also found that although the claimant was subject to "regulations for the orderly governance of the hospital," she had no contract of employment with, and was not an employee of, the insured hospital. The claimant's claim for compensation was dismissed. The standard of review has been stated by us in many of our decisions. Hachadourian's Case, 340 Mass. 81 , 85. Thayer's Case, ante, 36, 39. The record shows extensive support for the findings.