Home ALFRED AMOLINS vs. JOHN A. LUBANS.

346 Mass. 782

January 8, 1964

Appeal dismissed. The appellee has moved to dismiss this appeal (see G. L. [Ter. Ed.] c. 231, Section 96) from the denial of the appellant's substitute petition to vacate a judgment (see G. L. c. 250, Section 15) in the Superior Court. No mater reviewable under Section 96 is presented by the appeal. In particular, no error of law apparent on the record is disclosed. There is no occasion for considering whether the contentions which the appellant seeks to present would have merit if properly before us upon a bill of exceptions. Cf. Russell v. Foley, 278 Mass. 145 , 148; Mede v. Colbert, 342 Mass. 166 , 169.

Home HERBERT LORD vs. CHAIRMAN OF THE SCHOOL COMMITTEE OF WINCHESTER & others.

346 Mass. 782

January 29, 1964

Exceptions overruled. Mr. Lord filed a petition for a writ of mandamus against various officers of the Winchester school system to compel the chairman of the school committee "through" the superintendent of schools to recover certain extra compensation theretofore paid to school teachers holding the degree of master of arts or doctor of philosophy. He also seeks relief, not fully defined, against the town treasurer with respect to future payments of such compensation. A justice of the Superior Court was warranted in refusing, as matter of discretion, an order of notice. This action could reasonably have been based upon the irregular form of the petition, without more. See Garden Homes, Inc. v. District Court of Somerville, 336 Mass. 432 , 434, and cases cited. We do not suggest, however, that there would be merit in Mr. Lord's contentions upon a more precise petition. See G. L. c. 71, Sections 37, 38 (as amended through St. 1960, c. 333, Section 2), 38G (as amended through St. 1960, c. 333, Section 1); Attorney Gen. v. Ware, 328 Mass. 18 , 20.

Home HAROLD M. FULLER vs. METROPOLITAN TRANSIT AUTHORITY.

346 Mass. 782

January 29, 1964

Exceptions overruled. The evidence most favorable to the plaintiff is that at 6:15 P.M. on a cold and windy day during a heavy snow storm he entered the defendant's Devonshire Street station in Boston, descended the steps while holding onto the right handrail, and had reached the third or fourth step from the bottom when he stepped on an object which felt like "half a hard rubber ball," but appeared to be ice under snow. He fell and was injured. After a verdict for the plaintiff, the judge under leave reserved entered a verdict for the defendant. There was no error. Whatever the substance may have been, there was no evidence that it had been on the step long enough so that the employees of the defendant, in the exercise of reasonable care, should have discovered it and removed it. Reardon v. Boston Elev. Ry. 311 Mass. 228 , 230, and cases cited.

Home JEANNE WICKES vs. FIRST NATIONAL STORES INC.

346 Mass. 782

January 29, 1964

Exceptions overruled. In this action of tort the plaintiff duly excepted to the allowance of the defendant's motion for a directed verdict. The facts

Page 783

do not appear to be in dispute. The plaintiff was driven by her husband in his automobile to a parking space of a supermarket of the defendant. The plaintiff alighted from the automobile, shutting the door, and turned to face her husband, who was still in the driver's seat. Suddenly the husband cried out to the plaintiff: "Look out." She turned her head to the right and saw an empty shopping cart in motion approaching her. She tried to "grab the oncoming shopping cart to prevent it from striking her," but lost her balance and fell to the ground and the shopping cart came to a stop on top of her. When the moving cart was first noticed by the plaintiff and her husband it was about one foot away from her. It was "the custom" of the defendant to allow customers to wheel out shopping carts to their cars. "It was . . . the . . . policy of the defendant to delegate an employee each night at the closing hour to inspect the parking area . . . for stray shopping carts . . . and collect the same and return them to the supermarket." An investigator testified as an "expert" with reference to certain experiments he made at the locus. The principles of law governing the issues have been clearly established and require no citations. What caused the shopping cart to be put in motion was utterly conjectural. There was no error.