Magliozzi v. Itre

Mass. Dist. Ct., App. Div.

Magliozzi v. Itre

5 Mass. App. Dec. 78

CourtMassachusetts District Court, Appellate Division

DecidedJuly 1, 1953

DocketNo. 4645

StatusPublished

This text of 5 Mass. App. Dec. 78 (Magliozzi v. Itre) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Magliozzi v. Itre, 5 Mass. App. Dec. 78 (Mass. Ct. App. 1953).

Pincite

Opinion

Eno, J.

This is an action of tort by a bailor of an automobile against the defendant, who, it is alleged, stopped his automobile suddenly and without warn-ing, causing the plaintiff’s automobile then operated by plamtiff’s bailee, to crash into its rear. The defend-ant testified that while traveling in about the center of the road a dog came from his left towards his right hand side; that he pulled his automobile to the right and stopped in back of parked automobiles; and that thereafter he was struck in the rear by the plaintiff’s automobile.

The plaintiff filed requests for rulings of which the following were denied by the trial judge:

“1. On all the evidence there should be a finding for the plaintiff.”

“3. On all the evidence the Court must find that the defendant was negligent.”

The court found the following facts:

“The operator of the plaintiff’s car was negligent. The defendant drove his car properly. He was not negligent.”

The report, incorrectly called "plaintiff’s report,” [79]*79does not state that it contains all the evidence material to the questions reported, and that is enough for its dismissal. Cincevich v. Patronski, 304 Mass. 679.

Wilbur Nixon, Attorney for plaintiff. Badger, Pratt, Doyle & Badger, Attorneys for defendant.

The negligence of the defendant was a question of fact for the trial judge, Hladick v. Williams, 292 Mass. 470, 473, who found that he was not negligent, Jennings v. Bragdon, 289 Mass. 595.

Furthermore, while the evidence might have warranted a contrary finding, we do not think that one of negligence was required. The plaintiff had the burden of proof and the judge did not have to believe his version of the collision. Therefore, there was no error in the denial of plaintiff’s third request.

There was also no error in the denial of his first request because it did not contain any specification as required by Rule 27 of the Rules of the District Courts. Okin v. Sullivan, 307 Mass. 227.

There being no prejudicial error in the denial of plaintiff’s first and third requests for rulings the re-port is to be dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

Eno, J.

This is an action of tort by a bailor of an automobile against the defendant, who, it is alleged, stopped his automobile suddenly and without warn-ing, causing the plaintiff’s automobile then operated by plamtiff’s bailee, to crash into its rear. The defend-ant testified that while traveling in about the center of the road a dog came from his left towards his right hand side; that he pulled his automobile to the right and stopped in back of parked automobiles; and that thereafter he was struck in the rear by the plaintiff’s automobile.

The plaintiff filed requests for rulings of which the following were denied by the trial judge:

“1. On all the evidence there should be a finding for the plaintiff.”

“3. On all the evidence the Court must find that the defendant was negligent.”

The court found the following facts:

“The operator of the plaintiff’s car was negligent. The defendant drove his car properly. He was not negligent.”

The report, incorrectly called "plaintiff’s report,” [79]*79does not state that it contains all the evidence material to the questions reported, and that is enough for its dismissal. Cincevich v. Patronski, 304 Mass. 679.

Wilbur Nixon, Attorney for plaintiff. Badger, Pratt, Doyle & Badger, Attorneys for defendant.

The negligence of the defendant was a question of fact for the trial judge, Hladick v. Williams, 292 Mass. 470, 473, who found that he was not negligent, Jennings v. Bragdon, 289 Mass. 595.

Furthermore, while the evidence might have warranted a contrary finding, we do not think that one of negligence was required. The plaintiff had the burden of proof and the judge did not have to believe his version of the collision. Therefore, there was no error in the denial of plaintiff’s third request.

There was also no error in the denial of his first request because it did not contain any specification as required by Rule 27 of the Rules of the District Courts. Okin v. Sullivan, 307 Mass. 227.

There being no prejudicial error in the denial of plaintiff’s first and third requests for rulings the re-port is to be dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

5 Mass. App. Dec. 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magliozzi-v-itre-massdistctapp-1953.

Opinion

Related

Cite This Page — Counsel Stack