Atkins v. Martin Jordan, Inc.

36 Mass. App. Dec. 67

• Court: Massachusetts District Court, Appellate Division
• Decided: July 1, 1966
• Docket: No. 6278; No. 12915
• Status: Published

Opinion

*Yesley, J.

In this action the plaintiff seeks to recover for damage to her motor vehicle on a public ivay in Dorchester, which she alleges was caused by the negligent operation of a motor vehicle operated by the individual defendant and owned by the corporate defendant.

The only evidence on the issue of liability came from the plaintiff who testified that while “driving her car on Blue Hill Avenue ... a cab came from Ellington Street and did not stop and hit the left rear of her car”. The defendants presented no evidence. The trial justice found for the plaintiff and the defendants claiming to be aggrieved by the finding requested a report.

The evidence was manifestly insufficient to warrant findings that the cab was operated by the individual defendant (see Lodge v. Congress Taxi Association, Inc., 340 Mass. 570, 574); or that it was owned by the corporate defendant, or registered in its name (See G.L. c. 231, s. 85A; Bartley v. Almeida, 322 Mass. 104, 107); or that there was any negligence on the part of the operator of the cab.

The mere happening of the accident is not evidence of negligence. Conley v. Town Taxi, Inc., 298 Mass. 130, 132. Since the evidence did not permit him to make these findings essential to liability, the trial justice should have found for the defendants.

Melvin A. Cherwin of Boston for the Defendants. Harold J. Elam of Boston filed a brief for the Plaintiff.

The question arises as to whether the defendants, who filed no requests for rulings, are entitled to have the general finding of the trial justice against them reviewed by this Division. Ordinarily the sufficiency of evidence to warrant a general finding is tested in the District Courts and brought here by requests for rulings. Barton v. Cambridge, 318 Mass. 420, 424. However, where the evidence is not in dispute its sufficiency as a matter of law to support a general finding may properly come to this Division for review by way of a request for a report from the finding. Barton v. Cambridge, supra, at p. 424. See Leshefsky v. American Employers’ Insurance Company, Inc., 293 Mass. 164, 166, 167.

There being prejudicial error, the finding for the plaintiff against each defendant is to be vacated and judgment entered for both defendants.