Peabody v. Palumbo

4 Mass. App. Div. 293

• Court: Massachusetts District Court, Appellate Division
• Decided: August 14, 1939
• Status: Published

Opinion

Estes, J.

This is an action for property damages caused by a collision of the plaintiff’s automobile, which he was operating, with an hospital ambulance operated by the defendant, at an intersection from which five streets radiate.

On conflicting evidence the court found for the defendant. No written findings of facts were made. The plaintiff filed five requests for rulings of which the first, third and fifth were denied. The case was submitted on briefs. The plaintiff, in his brief, argues that there was prejudicial error in the denial of this first request, and possibly of the third and fifth.

The first request is that “there is sufficient evidence to warrant and support a finding for the plaintiff. ’ ’ The court denied this request “ as I do not so find. ’ ’ It has been pointed out repeatedly that the better practice is to allow such a request (where it can be) and make findings on the evidence. In this case, however, the court could, and by the denial of this, and the third request, apparently, did find that' the plaintiff was contributorily negligent, and that any negligence of the defendant, or violation of the statute, were not the sole cause of the plaintiff’s damage.

We cannot say that there was prejudicial error. O’Toole vs. Magoon, 1936 Mass. Ad. Sheet 1885, and cases cited.

Report dismissed.