Healy v. O'Riley

153 N.E. 881, 257 Mass. 413, 1926 Mass. LEXIS 1364

• Court: Massachusetts Supreme Judicial Court
• Decided: November 17, 1926
• Status: Published

Opinion

By the Court.

The only point argued by the defendant is that the first of his several requests for rulings, to the effect that upon all the evidence the plaintiff is not entitled to recover, ought to have been granted. That was in substance a request for a directed verdict. Under Common Law Rule 44 of the Superior Court (1923) the question whether the court should order a verdict must be raised by motion and not by a request for instructions. That is a valid rule and must be followed. The question argued by the defendant is not open on this record. Carp v. Kaplan, 251 Mass. 225.

If, however, the merits be considered, there was ample evidence of gross negligence on the part of the defendant causative in injuring the plaintiff. Massaletti v. Fitzroy, 228 Mass. 487. Altman v. Aronson, 231 Mass. 588, 591. The case is quite distinguishable from Burke v. Cook, 246 Mass. 518, Shriear v. Feigelson, 248 Mass. 432, and similar decisions.

Exceptions not argued of course are treated as waived.

Exceptions overruled.