Home ROY O. WEBSTER vs. DANTE BRACCI & another.

348 Mass. 770

October 29, 1964

In an action of tort for negligence arising from a head-on collision of the plaintiff's and the corporate defendant's motor vehicles during a heavy, whirling snowstorm when only twelve feet of the roadway was available for travel and visibility was extremely poor, the judge allowed, subject to the plaintiff's exception, the defendants' motion for a new trial which recited that the verdicts for the plaintiff were against the evidence, the weight of the evidence, and the law. The judge's indorsement granting the motion "[f]or the reasons set forth in the defendants' motion" complied with the requirements of G. L. c. 231, Section 128. Anti v. Boston Elev. Ry. 247 Mass. 1 , 4-6. Carver-Beaver Yarn Co. Inc. v. Wolfson, 249 Mass. 257 , 258-259. The considerations which should guide a judge in the disposition of a motion for a new trial and which govern our review of his action are fully set out by Qua, C. J., in Hartman v. Boston Herald-Traveler Corp. 323 Mass. 56 , 59-61, and are applicable here. No basis for reversal appears.

Exceptions overruled.

Home ELINORE MANZONI & another vs. EDWARD HAMLIN, JR.

348 Mass. 770

October 29, 1964

In this action of tort against a surgeon for malpractice, the plaintiff and her husband (who sued for consequential damages) had verdicts. The defendant's exceptions to the denial of his motion for directed verdicts bring the case here. There was evidence of several admissions made by the defendant. The medical evidence, apart from these admissions, was insufficient to take the case to the jury. But the admissions would warrant a finding that the plaintiff's injuries were caused by the defendant's negligence. The defendant takes the position that in a malpractice case admissions, unless corroborated by expert testimony, ought not to be sufficient to take a case to the jury. Recognizing that our decisions are to the contrary, the defendant urges that we do not follow them. This we decline to do. The case at bar is governed in principle by Leary v. Keith, 256 Mass. 157 , 158, Tully v. Mandell, 269 Mass. 307 , 309, Zimmerman v. Litvich, 297 Mass. 91 , 94, and Woronka v. Sewall, 320 Mass. 362 , 365.

Exceptions overruled.

Home ERNEST C. NICKERSON & another vs. DAVID WILSON OUTHOUSE & others.

348 Mass. 770

October 29, 1964

In the matter of the alleged will of the late Miriam A. Nickerson, the contestants made a motion to have jury issues framed on (1) testamentary capacity and (2) fraud and undue

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influence. The motion was heard on statements of expected evidence and the testimony of one witness. The judge allowed the motion on the first ground and denied it on the second. From the order framing an issue on the first ground the proponents appealed; from the order refusing to frame an issue on the second ground, the contestants appealed. We have examined the evidence and statements of expected evidence, in the light of the familiar governing principles, and are of opinion that the decision of the judge ought not to be disturbed.

Orders affirmed.