Home THIRD NATIONAL BANK & TRUST CO., executor, vs. REITER OLDSMOBILE, INC.

360 Mass. 871

January 4, 1972

The judge directed a verdict for the defendant in this action of tort and contract for fire damage to a building caused by the negligence of the defendant tenant. The judge did not require the defendant to specify the reasons on which its motion for a directed verdict was based, but stated for the record that it was the judge's opinion that the lessee was exempted from liability by a clause in the lease. It is therefore open to the defendant to support the ruling on another ground. Connors v. Wick, 317 Mass. 628 , 630. McKinstry v. New York, N. H. & H. R.R. 338 Mass. 785 . As the defendant points out, the bill of exceptions does not disclose sufficient evidence of negligence to warrant a finding for the plaintiff. The defendant's service manager testified that he was responsible for a portable electric heater, that he turned it off each night, and that he did not recall turning it off on the Friday night in question. A lieutenant from the State fire marshal's office gave the opinion that the fire, which was reported the following Sunday afternoon, was caused by an overheated portable electric heater left running. This testimony does not exclude the possibility that the fire resulted from a defect in the heater of which the defendant had no notice. Hence a finding of negligence would have rested in surmise and conjecture. Wardwell v. George H. Taylor Co. 333 Mass. 302 , 305. Dolan v. Suffolk Franklin Sav. Bank, 355 Mass. 665 , 669-670.

Exceptions overruled.

Home BEVERLY A. MERCIER vs. DAVID M. JONES, SR.

360 Mass. 871

January 4, 1972

The plaintiff was injured when an automobile driven by her husband, in which she was a passenger, was in a collision with one driven by the defendant. A jury returned a verdict for the plaintiff. The only exception presented to this court is to the denial of the defendant's motion for a directed verdict. The evidence is summarized in its light most favorable to the plaintiff. The collision occurred about 8 P.M. on July 23, 1965, on Route 20, in Oxford, at a place where the highway is substantially level and straight, with two lanes for traffic going in each direction. The two automobiles were going in opposite

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directions, and the driver of each saw the other when the automobiles were about 100 yards apart. The plaintiff's husband was driving westerly in his passing lane, intending to make a left turn into the driveway of a diner. When he started to make the turn he put on his directional signal and made a diagonal turn. The defendant saw the Mercier automobile turn diagonally to its left, but he did not see its directional signals. He applied his brakes and kept them on until the collision between his right front fender and the right rear door of the Mercier automobile, which was then partially in the diner driveway. After the collision there were two tire marks on the pavement extending back from the defendant's automobile a distance of ninety-five feet. At the moment of impact he was traveling about ten miles an hour. The defendant made no effort to turn left into his own passing lane to avoid the collision. On all of the evidence the jury could infer that, to some degree, negligence of the defendant contributed to the happening of the accident. Apparently the jury found that both drivers were negligent because they returned verdicts for the defendant on three counts in which the husband Mercier was a plaintiff. There was no error.

Exceptions overruled.