ANNA CARPENTER vs. BURTON E. LORING.

ANNA CARPENTER vs. BURTON E. LORING.

311 Mass. 745

April 10, 1942

Exceptions overruled. This action of tort was brought in the Superior Court. The plaintiff seeks to recover compensation for personal injuries sustained by her on a "porch" or "piazza" on premises of the defendant of which the plaintiff was a tenant. The case was tried by a judge sitting without a jury. The plaintiff requested five rulings, each of them conditioned upon the finding of certain facts by the judge. The judge denied all of these requests, stating that the "evidence presented was insufficient to satisfy me as to any of the facts upon which the plaintiff's requests are based," and found for the defendant. The plaintiff excepted to the denial of these requests. Whatever findings were warranted by the evidence, the evidence did not require the findings upon which the first, second, third and fifth requested rulings were based, and consequently the denial of these requests was not error. Even if

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it is assumed in favor of the plaintiff that evidence by which the defendant was bound required a finding of the fact upon which the fourth request was based, that "the defendant used the piazza where the plaintiff's injuries occurred," the judge was not required by that fact to find, in accordance with the request, "that the piazza remained within the control of the defendant." The fact that the defendant made repairs on the premises did not require a finding that he retained control thereof. See Salsman v. Frisch, 276 Mass. 228 , 230. Consequently, the denial of this request was not error. It may be added, though the question is not raised by any exception, that the evidence did not require a finding for the plaintiff. Upon essential elements of proof the evidence was contradictory or, even where not contradictory, might have been disbelieved.