Home CLAIRE G. LEVY, administratrix, vs. H. E. FLETCHER CO.

356 Mass. 728

November 4, 1969

In this action of tort to recover for the conscious suffering and death of the plaintiff's testate, the plaintiff excepted to the allowance of the defendant's motion for a directed verdict. The plaintiff's testate, an employee of an independent contractor, sustained his injuries in a fall through a portion of the roof of the defendant's building which his employer had undertaken to repair. Roofing work is hazardous, and reasonable examination by the independent contractor or its employees would have disclosed the condition which produced the fatal injury to the plaintiff's testate. Favereau v. Gabele, 262 Mass. 118 , 119. There was no duty to warn laid upon the defendant unless the defendant had some reason, which does not appear, to consider that a warning was necessary. Cadogan v. Boston Consol. Gas Co. 290 Mass. 496 , 499-500. There is no evidence of any violation of any duty owed to the plaintiff's testate by the defendant.

Exceptions overruled.

Home ANTONIO JOAQUIM & others vs. WILLIAM FIGIEL.

356 Mass. 728

December 1, 1969

In this action of tort for personal injuries, property damage and consequential damages arising from the alleged negligent operation of a motor vehicle by the defendant, the jury returned verdicts for the defendant. There is no merit to the plaintiffs' exceptions to the judge's charge. Although the charge was not given in the precise terms requested, the jury were adequately instructed that physical contact between the two vehicles was not essential to establish causal connection between negligence and damage. The requested instructions regarding G. L. c. 90, Section 14B (erroneously cited by the plaintiffs in their request) and Section 17, were not applicable on any version of the evidence. The issue of contributory negligence was left to the jury under proper instructions.

Exceptions overruled.

Home BEATRICE L. STEWART vs. PHILIP J. FORREST.

356 Mass. 728

December 1, 1969

The contestant appeals from an order of the probate judge denying a motion to frame for trial by jury the issue whether the execution of the alleged will was

Page 729

procured by the fraud or undue influence of the proponent. The judge received statements of counsel in lieu of evidence. We decide the case ourselves giving due weight to the decision of the judge. Boston Safe Deposit & Trust Co. v. Blaisdell, 333 Mass. 51 , 56. Applying frequently stated principles, we are of opinion as was the judge that the expected evidence did not raise a genuine and doubtful question of fact on the issue of fraud or undue influence. Goddard v. Dupree, 322 Mass. 247 , 250. Spilios v. Bouras, 337 Mass. 176 , 177. Tarricone v. Cummings, 340 Mass. 758 .

Order denying motion for jury issue affirmed.