Home JOHN COADY vs. HOWE & FRENCH, INC.

353 Mass. 753

November 30, 1967

The plaintiff in this action of tort had driven a truck to the defendant's warehouse to deliver drums containing alcohol and lacquer solvents and, while on his truck assisting the defendant's employee in unloading them, allegedly sustained injuries to his hands which were covered with a mist-like spray. There was evidence that this emanated from a five gallon can of perchloroethylene which had been struck by the forklift truck on which the defendant's employee was engaged in removing drums from the plaintiff's truck. The defendant has excepted to the denial of its motion for a directed verdict, to the admission of certain expert medical testimony, and to a portion of the trial judge's charge. Since this last exception was not argued in the defendant's brief, we do not pass upon it. S. J. C. Rule 1.13, 351 Mass. 738 . There was evidence sufficient to warrant sending the case to the jury. Testimony from the defendant's employees indicated that striking of cans was not unprecedented or unusual and was to be anticipated by one exercising reasonable care. West v. Molders Foundry Co. Inc. 342 Mass. 8 , 12-13. The medical expert, a specialist in allergic dermatology, in testimony not objected to, named the spray as "the competent producing cause" of the skin damage which the plaintiff suffered. On the assumption that any prior medical testimony was erroneously admitted, such admission was therefore harmless error. Nor was there any contributory negligence on the part of the plaintiff. The precautions which he took and the self-treatment he administered before seeking medical aid were reasonable in the face of his lack of knowledge of the potential injury which faced him.

Exceptions overruled.

Home ATHOS V. LONGO vs. METROPOLITAN DISTRICT COMMISSION.

353 Mass. 753

November 30, 1967

The petitioner brought a petition under G. L. c. 258, and c. 92, Section 36, to recover damages resulting from an alleged defect in a boulevard under the control of the respondent. During the trial the case was settled and an agreement for judgment was signed by the petitioner and his attorney. Following this a "certificate of judgment [was] issued" in accordance with the agreement. Subsequently, the petitioner filed a "motion to vacate judgment," which we treat as a petition to vacate judgment. After a hearing the "motion" was denied and the petitioner filed this "appeal to a motion denied." This case is not properly before us on appeal. Waltham Bleachery & Dye Works v. Clark-Rice Corp. 274 Mass. 488 , 490. Amolins v. Lubans, 346 Mass. 782 . Furthermore there is nothing in the record to indicate any abuse of discretion in the denial of the "motion."

Appeal dismissed.