Nerbonne v. New England Steamship Co.

193 N.E. 72, 288 Mass. 508, 1934 Mass. LEXIS 1313

• Court: Massachusetts Supreme Judicial Court
• Decided: December 4, 1934
• Status: Published

Opinion

Lummus, J.

The defendant was carrying a cow by steamer from Nantucket to one Levine in New Bedford. The first mate of the steamer, who was in charge of freight, testified that he knew that the cow was sterile, that sterile cows are "vicious like,” and that he did not tell these facts to the foreman of the gang engaged in unloading the freight. While being led down the gangplank at New Bed-ford by a servant of the defendant, the cow broke loose and ran into the street. Servants of the defendant chased her in a motor truck, and cornered her on two or three occasions, but she escaped. She went her way through the streets, pursued by several servants of the defendant, until she came to a place where the plaintiff was standing on the sidewalk, watching the chase. He heard someone speak, and turned around. When he turned back, the cow was almost upon him. He tried to escape, but was knocked down and hurt.

The judge found for the plaintiff. The Appellate Division dismissed the report, and the defendant appealed.

There was evidence of negligence in the unloading of the cow, in view of the mate’s knowledge of her probable nature. There was evidence, too, of negligence in the manner of pursuing such a cow through the streets of a city. A causal relation between negligence of the defendant and the injury could also have been found. It cannot be said as matter of law that the defendant sustained its burden of proving contributory negligence of the plaintiff.

What has been said disposes of all the requests for rulings at the trial, except one which had no foundation in the record.

On a motion for a new trial, the defendant apparently-sought merely to argue the case again. It presented a number of requests for rulings of law relating to the case as tried and decided, which the judge refused to consider. The statutes appear to recognize motions for new trials in district courts. G. L. (Ter. Ed.) c. 218, §§ 43, 50. See also § 4. It is true that G. L. (Ter. Ed.) c. 231, § 129, which by implication denies the right of a party to be heard on a motion for a new trial based on the ground that the finding is against the evidence or the weight of the evidence (O’Grady v. Supple, 148 Mass. 522; Menici v. Orton Crane & Shovel Co. 285 Mass. 499), does not in terms or by reference apply to district courts. St. 1933, c. 300, § 3. But the principle is of general application, apart from statute. A tribunal cannot ordinarily be required to reconsider upon the same evidence its decision of fact or law. Pingree v. Coffin, 12 Gray, 288, 324. Commonwealth v. Ruisseau, 140 Mass. 363. Sullivan v. Boston Bar Association, 170 Mass. 504. Boston Bar Association v. Casey, 227 Mass. 46. Clark v. McNeil, 246 Mass. 250, 256. Barringer v. Northridge, 266 Mass. 315, 320. Union Trust Co. of Springfield v. Magenis, 266 Mass. 363, 365. Pepper v. Old Colony Trust Co. 268 Mass. 467, 469, 470.

Furthermore, even if the motion for a new trial had a standing for some purpose, the requests for rulings were properly ignored. It is a commonplace in practice that a judge need not consider, on a motion for a new trial, questions of law which were, or could have been, raised at the trial. Kelley v. Jordan Marsh Co. 278 Mass. 101, 109. Commonwealth v. Osman, 284 Mass. 421, 426. Commonwealth v. Polian, ante, 494.

Order dismissing report affirmed.