312 Mass. 631 | Mass. | 1942
This is an action of tort to recover compensation for personal injuries. The case was referred to an auditor, who reported certain facts and found that at the time of the accident the plaintiff was in the exercise of due care and that the defendant was negligent. Thereafter the case was tried to a jury upon the auditor’s report and other evidence. At the close of the evidence the defendant moved for a directed verdict in her favor. The motion was denied subject to her exception, and the jury returned a verdict for the plaintiff. Exceptions taken by the defendant in the course of the trial to the denial of her requests for certain instructions to the jury and to portions of the judge’s charge were waived by her when the case was argued before us.
The effect of an auditor’s report, where his findings of fact are not agreed to be final, is fully discussed in Cook v. Farm Service Stores, Inc. 301 Mass. 564. It would serve no useful purpose to repeat in detail here what is said there. In the present case the ultimate findings of the auditor, that at the time of the accident the plaintiff was in the exercise of due care and that the defendant was negligent, were just as much evidence as his subsidiary findings, and entitled to be weighed by the jury like any other evidence of fact pertinent to the issues. They were based by the auditor upon “the evidence and under the circumstances.” It cannot be said properly that they are so inconsistent with any of his subsidiary or specific findings that all his findings cannot stand together. So far as they are more favorable to the plaintiff than the other evidence introduced at the trial before the jury, she is entitled to their benefit. There is nothing in that other evidence that would require ultimate findings contrary to those of the auditor to which we have referred above.
While the plaintiff testified before the jury that she looked to the right and left and saw no vehicles approaching, the auditor expressly found that when she started to cross Washington Street there was no moving vehicle within one hundred fifty feet of her. The facts that at that time the traffic light was green for the operation of vehicles on Washington Street, and that the plaintiff did not look at the
The plaintiff was entitled to rely on the expectation that the operator of any vehicle would exercise a proper degree of care for her safety. The foregoing aspects of the case are governed in principle by such cases as Legg v. Bloom, 282 Mass. 303, 305, Crowley v. Freeman, 291 Mass. 105, Campbell v. Cairns, 302 Mass. 584, 586, and cases cited, Nicholson v. Babb, 304 Mass. 216, 218, and Tookmanian v. Fanning, 308 Mass. 162. See also G. L. (Ter. Ed.) c. 231, §85.
In all the circumstances we are of opinion that it could not have been ruled rightly that the plaintiff was guilty of contributory negligence; and that the question of her due care was properly left to the jury.
Exceptions overruled.