Brennan v. Bollino

25 Mass. App. Dec. 200

• Court: Massachusetts District Court, Appellate Division
• Decided: October 25, 1962
• Docket: No. 49481
• Status: Published

Opinion

Roberts, J.

This is a petition to establish a report which the trial court disallowed. G. L. (Ter. Ed.) c. 231, §108.

The petitioners as plaintiffs commenced actions in tort against the respondent (defendant) to recover for alleged property damage and personal injuries. These actions arose as a result of a collision of a motor vehicle at the intersection of Massachusetts Avenue and Memorial Drive in which the plaintiffs alleged the defendant was negligent.

The issue was joined upon the filing by the defendant of a general denial with an allegation of contributory negligence, and after trial the court found for the defendant The petitioners filed no requests for rulings but after notice of finding filed motion for a new trial based on the allegations that the finding was against the evidence, the weight of the evidence, the law and newly discovered evidence. This motion was duly heard and subsequently denied, and the petitioners filed this petition to establish their report.

Meyers & Meyers, for the Petitioner.

There is no merit in this petition. The burden was upon the petitioners to establish their cause and prove negligence, and the finding of the trial court for the defendant was conclusive on this issue. Further, the denial of petitioners’ motion for a new trial provided no new issue and rested solely on the discretion of the trial court.

The denial of the motion presents only the question of abuse of the discretion by the trial judge. At the hearing, counsel presented no evidence of such abuse, and does not argue bias, and we find none. Haines v. Winthrop Sq. Cafe, Inc., 335 Mass. 152-154.

Petition denied.