Engel v. Checker Taxi Co.

275 Mass. 471 | Mass. | 1931

Rugg, C.J.

This is an action of tort to recover compensation for personal injuries to the plaintiff’s testator while he was a pedestrian upon a public way. The case finally rested on a count alleging that the injuries of the testator arose out of the negligence of one driving an automobile owned and operated by the defendant. The case was tried by a judge without a jury. At the conclusion of the evidence the defendant requested a finding and ruling that the plaintiff had failed to show negligence on the part of the defendant, and another, not material to the grounds of this decision, relating to damages. The trial judge found for ■the defendant. In connection therewith he filed what is termed a “finding and ruling.” Therein it is stated: “No witness of the accident was produced at the trial. The testimony as to the accident was confined to certain statements made by the deceased shortly after the accident, the answers of the defendant to certain interrogatories propounded by the plaintiff, a stiff-brimmed straw hat worn by the deceased at the time of the accident, and the nature and extent of the physical injuries to the deceased.” Then follows a fair summary of the evidence introduced. There is no recital that any of the evidence was found to be true.

The case comes before us by report, the concluding part of which is in these words: “Save as expressly or by necessary implication given in the foregoing findings and rulings, I denied the defendant’s requests, and the defendant duly excepted thereto. To my ruling and finding, the plaintiff duly saved the following exceptions: ‘1. That upon all the evidence the plaintiff was entitled to recover. 2. Upon all the evidence the judge erred in finding and ordering a judgment for the defendant. 3. Upon all the evidence the defendant was guilty of negligence. 4. Upon all the evidence the plaintiff’s testator was in the exercise of due care.’ I herewith report this case to the Supreme Judicial Court for determination upon the questions of law raised by the exceptions properly saved by the respective parties.” The plaintiff filed no requests for rulings.

No error of law is disclosed by any of the exceptions saved by the plaintiff. The general finding for the defendant imports a finding of all subsidiary facts necessary to that conclusion so far as warranted by the evidence. Adams v. Dick, 226 Mass. 46, 53. The only question of law presented is whether the finding for the defendant can be supported on any reasonable interpretation of the evidence including legitimate inferences therefrom. The general finding must stand if warranted upon any possible view of the evidence. Moss v. Old Colony Trust Co. 246 Mass. 139, 143, and cases cited. The credibility of the testimony and the inferences which ought to be drawn therefrom were entirely for the trial judge. McDonough v. Vozzela, 247 Mass. 552, 558. Klayman v. Silberstein, 252 Mass. 275, 278. The only question of law presented, therefore, is whether the finding in favor of the defendant can be supported. It is too plain for discussion that a finding for the defendant in a case where the evidence is chiefly oral presents no question of law. The fact finding tribunal is not required to give credit to any evidence tending to prove facts essential to the plaintiff’s right of recovery. Pass’s Case, 232 Mass. 515. The unequivocal finding in favor of the defendant is a finding based upon all the evidence. It is not cut down or converted into a ruling of law by the later summary by the judge to the effect that “Upon all the evidence and the inferences of fact reasonably to be drawn therefrom, I find and rule that the plaintiff is not entitled to recover.”

There was no evidence that required a finding of negligence on the part of the defendant. Rizzittelli v. Vestine, 246 Mass. 391. Whalen v. Mutrie, 247 Mass. 316. According to its answers to the interrogatories, the operator of the motor vehicle saw a man walking toward the left hand side of his cab four or five feet away, and as the cab passed the man slipped or stumbled and fell. If believed, this showed no negligence on the part of the defendant even in view of that part of St. 1925, c. 305, which requires the operator of a motor vehicle approaching a pedestrian on the travelled part of a way and not upon a sidewalk to slow down and give warning. That statute was operative at the time the accident occurred and governed the rights of the parties at the trial. Hennessey v. Moynihan, 272 Mass. 165, 169. On that evidence the testator was approaching the automobile from its side and was not being approached by the automobile, and hence there was no violation of the statute.

Judgment for the defendant on the finding.