Home FREDERICK V. MCCOY vs. NORUMBEGA AMUSEMENT CORPORATION.

351 Mass. 708

January 5, 1967

The defendant excepts to the denial of its motion for a directed verdict in this action of tort for personal injuries. The plaintiff, a customer, entered a lunch stand operated by the defendant. On the evidence most favorable to him it would appear that in sitting down on a stool he put his hand on the counter, at which time a window which was open dropped from its position onto his hand. The record does not suggest that customers were invited to open the window. The jury could find that the window did not fall as it did without negligence on the part of the defendant. United States v. Hull, 195 F. 2d 64. DiRoberto v. Lagasse, 336 Mass. 309 , 312.

Exceptions overruled.

Home JOSEPH COOK vs. JOZEF KOZLOWSKI & another.

351 Mass. 708

January 5, 1967

This is a petition filed in 1963 to establish a report in an action brought against the Kozlowskis and tried in a District Court. The Appellate Division dismissed the petition. So far as the draft report attempts to present the issue of the propriety of evidential rulings, there is no allegation of compliance with the fourth paragraph of Rule 27 of the Rules of the District Courts (1952), since republished, effective January 1, 1965. The docket entries reveal no such compliance. The draft report attempts to show inconsistency between (a) rulings by the trial judge that the evidence warranted findings for the Kozlowskis, and (b) his actual finding for Cook, which was warranted on evidence in part oral. Not only was there no necessary inconsistency (see Godfrey v. Caswell, 321 Mass. 161 , 162), but, if one had existed, the proper "remedy is not a report but a motion to correct the inconsistency or a motion for a new trial." See Vieira v. Balsamo, 328 Mass. 37 , 39. The petition does not contain an unequivocal allegation, supported by an unequivocal affidavit, that the draft report conforms to the truth. See Lasell v. Director of the Div. of Employment Security, 325 Mass. 23 , 25-26. It also does not reveal any meritorious ground for reversal.

Order of the Appellate Division affirmed.

Home DUANE A. COSSART vs. MILLICENT L. PRATT.

351 Mass. 708

January 5, 1967

The defendant has excepted to the denial of her motion for a directed verdict in an action of tort brought for personal injuries and property damage arising out of an automobile accident. The defendant, while operating a motor vehicle in a heavily settled school area, was approaching a crosswalk in the roadway, an intersection sign, and also a school crossing sign. The left front end of the defendant's car struck the plaintiff's vehicle on the right side at a time when the plaintiff's car was turning into a driveway and was almost at a ninety degree angle to the edge of the road in front of the defendant's vehicle. The force of the contact pushed the plaintiff's vehicle fifty feet and caused considerable damage. The defendant's car continued for a distance of ninety-six feet into a stone wall, striking it with sufficient force to push about four feet of the wall forward and some stones of the wall fifteen feet. The plaintiff had no memory of the accident. In these circumstances the jury could properly find that the collision was due to the negligence of the defendant. DeLeo v. Jefferson,

Page 709

331 Mass. 317 , 320. Whether there was contributory negligence on the part of the plaintiff was an issue for the jury. Lindgren v. Marraffa, 350 Mass. 376 , 379, and cases cited.

Exceptions overruled.