| Mass. | Feb 28, 1944
On June 5, 1937, the plaintiff drove his automobile into the defendant’s filling and greasing station, in
It is unnecessary to state further details of the evidence. Taking all of it together, whether the plaintiff was negligent in stepping off the running board, as he did, into a danger that was obvious if he looked about him was a question of fact to be decided by the trier of fact. Compare O’Brien v. Standard Oil Co. of Kentucky, 38 Fed. (2d) 808. We are also inclined to the opinion that whether the defendant’s attendant was. negligent in raising the lift, thereby creating a new risk, while, as he could see, the plaintiff’s attention was directed to the cleaning of his automobile, and after the plaintiff had been caused to believe that there would be some delay in waiting upon him, without giving him adequate warning, was a question of fact. Hartwick v. Lawson, 290 Mich. 91" court="Mich." date_filed="1939-09-05" href="https://app.midpage.ai/document/hartwick-v-lawson-3499817?utm_source=webapp" opinion_id="3499817">290 Mich. 91.
The judge made careful detailed findings of fact, covering several pages of the record, after which he appended seven numbered paragraphs in the nature of more general conclusions, all preceded by the words, “I find.” Among these are findings that the defendant’s attendant was not negligent, and that the plaintiff’s own negligence contributed to cause his injuries. At the end the judge says, “On all the
The findings that the defendant’s attendant was not negligent and that the plaintiff was contributorily negligent, if they are merely findings of fact and not the result of erroneous rulings of law, are of course decisive of the case and end the discussion. The principal question is whether the manner in which the judge dealt with certain of the requests for rulings indicates that his decisive findings were the result of erroneous views of the law, or whether the findings were bare conclusions of fact which he would have reached upon the evidence whatever way he had ruled upon the requests. To illustrate: take the defendant’s request numbered 2, “There is not sufficient evidence of negligence on the part of the defendant to warrant a finding for the plaintiff.” The judge granted this. As already indicated, we think that there was sufficient evidence of the defendant’s negligence to warrant a finding for the plaintiff, and that the ruling was wrong. There was also evidence to warrant a finding for the defendant on this issue. Now did the judge make his finding that the defendant (acting through his attendant) was not negligent became of the judge’s belief, shown by his ruling, that the evidence would not as matter of law warrant a contrary finding, or did he intend to make a finding of fact independent of his ruling, on the theory that the question might be open to him as a question of fact, as we think it was, and in order that an appellate court could have recourse to the finding, if his ruling should prove wrong? And if he intended that the case might thus rest upon a finding of fact, why did he grant the request for the ruling of law at all, since the only possible effect of granting it was to introduce doubt as to whether his finding of fact should stand? We have commented upon this situation before. United States Fidelity & Guaranty Co. v. Sheehan, 308 Mass. 321" court="Mass." date_filed="1941-02-24" href="https://app.midpage.ai/document/united-states-fidelity--guaranty-co-v-sheehan-6443886?utm_source=webapp" opinion_id="6443886">308 Mass. 321, 323-324.
The frequency with which questions -like this have cropped up in this court in the last few years in reviewing
But on the record in the case before us, in view of the painstaking analysis of the facts by the judge, followed by special numbered findings on points deemed important, and finally in view of the ultimate conclusions, each using the words, "I find,” each expressly stated to be upon "all the evidence,” and each entirely consistent with the preceding subsidiary findings, we are convinced that the judge intended these findings to stand by themselves and that he was not influenced in making them by the manner in which he had dealt with the requests for rulings. Strong v. Haverhill Electric Co. 299 Mass. 455" court="Mass." date_filed="1938-02-11" href="https://app.midpage.ai/document/strong-v-haverhill-electric-co-6442744?utm_source=webapp" opinion_id="6442744">299 Mass. 455. Marquis v. Messier, 303 Mass. 553" court="Mass." date_filed="1939-07-07" href="https://app.midpage.ai/document/marquis-v-messier-6443296?utm_source=webapp" opinion_id="6443296">303 Mass. 553, 555-556. Himelfarb v. Novadel Agene Corp. 305 Mass. 446" court="Mass." date_filed="1940-03-25" href="https://app.midpage.ai/document/himelfarb-v-novadel-agene-corp-6443552?utm_source=webapp" opinion_id="6443552">305 Mass. 446. Ajax Shoe & Leather Co. v. Selig, 305 Mass. 389" court="Mass." date_filed="1940-03-11" href="https://app.midpage.ai/document/ajax-shoe--leather-co-v-selig-6443542?utm_source=webapp" opinion_id="6443542">305 Mass. 389, 391-392. United States Fidelity & Guaranty Co. v. Sheehan, 308 Mass. 321" court="Mass." date_filed="1941-02-24" href="https://app.midpage.ai/document/united-states-fidelity--guaranty-co-v-sheehan-6443886?utm_source=webapp" opinion_id="6443886">308 Mass. 321, 323-324. Perry v. Hanover, 314 Mass. 167" court="Mass." date_filed="1943-06-28" href="https://app.midpage.ai/document/perry-v-hanover-6444605?utm_source=webapp" opinion_id="6444605">314 Mass. 167, 173-176. Lyons v. Hennessey, 314 Mass. 359" court="Mass." date_filed="1943-06-30" href="https://app.midpage.ai/document/lyons-v-hennessey-6444633?utm_source=webapp" opinion_id="6444633">314 Mass. 359, 363. Rummel v. Peters, 314 Mass. 504" court="Mass." date_filed="1943-09-13" href="https://app.midpage.ai/document/rummel-v-peters-6444654?utm_source=webapp" opinion_id="6444654">314 Mass. 504, 517-518. Cournoyer v. Holyoke, 314 Mass. 604" court="Mass." date_filed="1943-10-28" href="https://app.midpage.ai/document/cournoyer-v-city-of-holyoke-6444669?utm_source=webapp" opinion_id="6444669">314 Mass. 604. Stakelieunias v. Senuta, 314 Mass. 657" court="Mass." date_filed="1943-10-28" href="https://app.midpage.ai/document/stakelieunias-v-senuta-6444678?utm_source=webapp" opinion_id="6444678">314 Mass. 657. Compare Bresnick v. Heath, 292 Mass. 293" court="Mass." date_filed="1935-10-31" href="https://app.midpage.ai/document/bresnick-v-heath-6441830?utm_source=webapp" opinion_id="6441830">292 Mass. 293, 298-299; Home Savings Bank v. Savransky, 307 Mass. 601" court="Mass." date_filed="1940-12-31" href="https://app.midpage.ai/document/home-savings-bank-v-savransky-6443824?utm_source=webapp" opinion_id="6443824">307 Mass. 601; Bern v. Boston Consolidated Gas Co. 310 Mass. 651" court="Mass." date_filed="1942-01-27" href="https://app.midpage.ai/document/bern-v-boston-consolidated-gas-co-6444144?utm_source=webapp" opinion_id="6444144">310 Mass. 651, 653-654; Mansfield v. Spear, 313 Mass. 685" court="Mass." date_filed="1943-04-26" href="https://app.midpage.ai/document/mansfield-v-spear-6444550?utm_source=webapp" opinion_id="6444550">313 Mass. 685. Hoffman v. Chelsea, ante, 54.
Order dismissing report affirmed.