315 Mass. 268 | Mass. | 1943
These are two actions of tort to recover compensation for personal injuries sustained by the plaintiffs as a result of the collision of a street car of the defendant with an automobile in which the plaintiffs were riding at the time of the collision.
The cases were referred to an auditor whose findings of fact were not to be final. The material findings of fact of the auditor may be summed up as follows: On August 18, 1940, at about 6:30 p.m., the plaintiffs were riding as passengers in an automobile owned and operated by one Jussaume. The vehicle was being driven in an easterly direction on Locust Street in New Bedford at a speed of about thirty miles an hour. As “it reached the intersection of Summer Street •. . . [Jussaume] slowed down as he proceeded through the intersection.” The street car of the defendant had entered the intersection “ahead of” the automobile at a speed of about eight miles an hour. Jussaume either did not see the street car or was endeavoring to cross the intersection “ahead” of it. The operator of the street car observed the approach of the automobile when it was fifty feet away from the intersection, and believed that the operator of the automobile would give him the right of way and would not attempt to cross in front of him. The street car had reached the middle of the intersection when it came into collision with the automobile, which was proceeding through the intersection without changing its course or “further slackening” its speed. As a result of the collision, the automobile was pushed sideways over to the southeast corner of the intersection, facing in a northeasterly direction. The street car came to a stop about three feet from
Following the filing of the auditor’s report the cases came
The contentions of the defendant are that “the evidence was insufficient as a matter of law to support a finding of negligence on . . . [its] part,” and that, notwithstanding the findings of the auditor that the plaintiffs were not guilty of contributory negligence, the judge was warranted in finding upon the subsidiary findings of the auditor and the reasonable inferences therefrom that the plaintiffs were so guilty.
In the present cases it was not agreed that the auditor’s findings of fact should be final, and the only evidence before the judge was the auditor’s report. The force and effect of an auditor’s report where his findings of fact have not been agreed to be final are fully discussed in Cook v. Farm Service Stores, Inc. 301 Mass. 564, with citation of authorities. The auditor’s finding that the operator of the street car was negligent and that his negligence was a contributing cause of the collision was evidence binding upon the judge unless some subsidiary or specific fact found by the auditor with relation to this subject matter was so inconsistent with this general or ultimate finding that as matter of law they could
The subsidiary and ultimate findings of the auditor do not warrant a finding that the plaintiffs who were riding as guests of Jussaume in his automobile (see Bessey v. Salemme, 302 Mass. 188) were guilty of contributory negligence. Upon all the evidence the findings that the plaintiffs were intoxi
So ordered.