JANE V. HORTON & another vs. LOUISE TILTON.

JANE V. HORTON & another vs. LOUISE TILTON.

325 Mass. 79

October 28, 1949 - December 1, 1949

Bristol County

Present: QUA, C.J., RONAN, WILKINS, SPALDING, & COUNIHAN, JJ.

A denial by a judge of a District Court of requests for rulings that there was sufficient evidence to warrant certain findings became immaterial in view of a statement made by the trial judge that the requests were denied because he found the contrary facts on the evidence.

TORT. Writ in the First District Court of Bristol dated April 17, 1947. The case was heard by Welch, J. In this court the case was submitted on briefs. F. D. Mone, for the defendant. T. T. Tweedy, for the plaintiffs.

RONAN, J. The female plaintiff (hereinafter called the plaintiff) and her husband recovered damages for an injury which the plaintiff received while in the employ of the defendant, an antique dealer, when her finger was so badly crushed in the latch of a garage door that she lost a considerable portion of the bone of the first phalanx. The judge denied two requests for rulings, one to the effect that there was a sufficiency of evidence to find that the plaintiff was contributorily negligent, and the other that there was a sufficiency of evidence to find that the defendant was not negligent. These requests were denied by the judge because, as he stated, he found upon the evidence that the plaintiff was not negligent but that the defendant was negligent. A report to the Appellate Division was dismissed, and the defendant appealed.

It is plain from the special findings made by the judge in denying these requests that he found upon the evidence that the plaintiffs had proved that the defendant was negligent,

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and that the defendant had failed to prove the negligence of the female plaintiff. The denial of the requests, therefore, became immaterial. Further discussion would be superfluous in view of recent decisions in which the subject has been exhaustively treated with a full citation of cases. Perry v. Hanover, 314 Mass. 167 . Brodeur v. Seymour, 315 Mass. 527 . Liberatore v. Framingham, 315 Mass. 538 . Quinby v. Boston & Maine Railroad, 318 Mass. 438 . Connell v. Maynard, 322 Mass. 245 .

Order dismissing report affirmed.