293 Mass. 426 | Mass. | 1936
These are two actions of tort whereby the plaintiff seeks to recover compensation for injuries to his person and for damage to an automobile owned by him as the result of a collision with a motor vehicle owned by
The defendants requested several rulings of law, which were denied. The only ones now argued were presented in each case and are these: “If the plaintiff violated c. 89, § 1, such violation is evidence of negligence and if it contributed to the accident the plaintiff cannot recover.” “As the plaintiff violated c. 89, § 1, such violation is evidence of negligence and as it contributed to the accident the plaintiff cannot recover.” It is provided by G. L. (Ter. Ed.) c. 89, § 1, that “When persons traveling with vehicles meet on a way, each shall seasonably drive his vehicle to the right of the middle of the traveled part of such way, so that the vehicles may pass without interference.” Gal
The general finding for the plaintiff in each case imports a finding of all subsidiary facts necessary to that conclusion. Adams v. Dick, 226 Mass. 46, 53. Engel v. Checker Taxi Co. 275 Mass. 471, 475. Mahoney v. Norcross, 284 Mass. 153. Wood v. Oxford, 290 Mass. 388. Whether or not there was a violation of the statute was a question of fact. Patrican v. Garvey, 287 Mass. 62. The general finding for the plaintiff implied a specific finding that the plaintiff did not violate the law of the road. The requested rulings thus were inapplicable to the facts found. Globe Discount & Finance Corp. v. Sawyer, 288 Mass. 431. There was no error of law in the denial of the requests.
Motion for a new trial supported by affidavit was filed in each case, based on alleged bias and prejudice on the part of the trial judge against the insurance company which had insured the motor truck involved in this collision. The substance of the motion and affidavit was that, on December 14, 1934, after the trial of the cases at bar and before the findings were filed, the trial judge, while engaged as an attorney for a plaintiff in the trial of a case in which the same insurance company was insurer for the defendant, became incensed because of the failure of that insurance company to give him certain information, and used language and a tone of voice expressing great displeasure and perhaps anger, and indicating a disposition to punish that company, thus demonstrating his hostility to it. These motions were heard before the trial judge. At that hearing the defendants offered as a witness the person who had made the affidavit and made offer of proof that, if sworn, his testimony would be as set forth in his affidavit. The trial judge refused to permit the affiant to be a witness; the defendants duly requested a report of this ruling. No
These motions having come on to be heard before the trial judge, he was bound to hear and decide them according to the law and the evidence although they concerned in some respects his personal conduct. He must hear them as a judge and not as a person attacked or in any sense an antagonist. The principles of law as to burden of proof and preserving judicial poise must be scrupulously observed. Davis v. Boston Elevated Railway, 235 Mass. 482, 495-502.
There was no error in refusing to hear the oral testimony of the affiant on the motions for new trial. Scott v. Bevilacqua, 226 Mass. 554, 559; Universal Adjustment Corp. v. Midland Bank, Ltd. of London, 281 Mass. 303, 307; Commonwealth v. Millen, 290 Mass. 406, 410.
A judge has a right to draw upon his own knowledge of the course of the trial, and upon his observations in decid
There appears to be no reason to doubt the facts recited in the statement of the trial judge as to the time when the cases at bar were decided. That being accepted as true, the matter now urged could not have affected the decision of the cases at bar. If the affidavit in support of the motions be taken as modified by the statement of the judge,
In each case the entry may be Order dismissing report affirmed.