Cathcart v. Sprague

1 Mass. App. Dec. 43

• Court: United States District Court
• Decided: May 23, 1941
• Docket: No. 912
• Status: Published

Opinion

ESTES, J.

(Sanborn, P.J., & Briggs, J.)—In this action of tort for personal injuries suffered by the plaintiff, a pedestrian, the court, on conflicting evidence, made written findings. He found, on evidence most favorable to the defendant which warranted such a finding, that the plaintiff was guilty of com tributary negligence, and that such contributory negligence was a cause of the accident in which the plaintiff was injured, and found for the defendant.

The plaintiff filed a request for rulings which consisted of nine subjections. All but the last dealt with questions of negligence of the defendant. The last was: “it is not con' tributary negligence on the part of a pedestrian who starts to cross the street when the defendant’s automobile is 50 feet or more beyond him.” The court refused to give the ruling and all subjections “for the reason that they are not applicable in the light of the finding of contributory negligence of the plaintiff.”

That a finding of negligence is usually a question of fact has been held so repeatedly that a discussion here seems em tirely unnecessary.

The court made a full written Findings of Facts with his rulings. In view of his findings, on evidence which warranted them, the requests were not applicable. Nor does it seem necessary to discuss the rule, which has been so often laid down by the Supreme Judicial Court, that such a disposition of requests is correct. There is nothing in the plaintiff’s brief—he did not argue orally—that urges anything to take this case out of the usual rules.

The appeal is frivolous, and the report is dismissed with double costs.