360 Mass. 850 | Mass. | 1971
The plaintiff seeks recovery in tort and contract for damage caused to its barge while the defendant was towing it for hire from Providence to Boston. The case is here on the plaintiff’s appeal from an order of the Appellate Division dismissing a report from the Municipal Court of the City of Boston after a finding for the defendant. The plaintiff’s first count is in tort for negligence. In count 2 the plaintiff alleges that it “incorporates all the allegations contained in Count I and further says that the defendant was not only negligent, but failed to live up to its implied obligation to tow properly and safety, and violated its implied warranty of rendering workmanlike services during the tow,” with resulting damage to the barge. This seemingly hybrid count is treated by the plaintiff as alleging a claim in contract and we shall treat it as such for the purpose of this decision. Whether the defendant was negligent and whether it performed in an unworkmanlike manner are issues of fact upon which the plaintiff had the burden of proof. They were issues to be decided by the trial judge as the sole trier of facts, and as the sole judge of the weight and credibility of the evidence which consisted in large part of oral testimony. He expressly found that the defendant was not negligent, thus disposing of count 1 on a factual basis. He granted a number of the plaintiff’s requests for rulings that by agreeing to tow the barge the defendant made an “implied warranty to render workmanlike service,” but as to each such request granted the judge added that it
Order dismissing report affirmed.