Semente v. Boston & Maine Railroad

2 Mass. App. Dec. 38

• Court: Massachusetts District Court, Appellate Division
• Decided: December 15, 1941
• Docket: No. 149610
• Status: Published

Opinion

RILEY, J. (Putnam, C. J., and Tomasello, J.)

This is an action of contract or tort to recover for damage caused to a shipment of grapes while in transit from Glendale, California, to Boston, Massachusetts, in October, 1940.

The trial judge made the following findings of fact, “I find that the damage to said grapes resulted from the negligence .of said Cataldo, while acting as agent for the plaintiff. If this finding of fact is deemed not warranted by the evidence, I find that -the plaintiff has not sustained his burden of proof.”

The defendant offered no evidence.

At the appropriate time the plaintiff filed requests for rulings of law upon which the trial judge acted. The plaintiff claims to be aggrieved by the judge’s denial of his request numbered 6, and by the judge’s action in amending requests numbered 2, 3, 7 and 8, before allowing them.

The Court found for the defendant-generally.

We treat first the question relating to power of the- trial judge to amend a request. An examination of the requests which the trial judge amended clearly shows that until amended they did not consist of complete statements of law in view of the evidence and the issue raised thereby. A judge may properly refuse to make a ruling of law in the form requested if he believes it to be incomplete, Whitney v. Lynch. 222 Mass. 112, and he is not required to grant a request in the precise language in which it is framed, provided the subject matter is adequately and properly covered. Leave v. Boston Elevated Railway, 306 Mass. 391 at 404.

The trial judge found as a fact that the grapes were damaged due to the negligence of Cataldo (plaintiff’s agent). Such a finding was warranted on the evidence of Cataldo’s unloading of the boxes of grapes from the truck, each time it arrived at the Glendale depot, and placing them upon the railroad platform and allowing them to remain in the hot sun before being loaded into the railroad car.

The recital by the railroad in the bill of lading that the goods were received in apparent good order, though prima facie, is not conclusive evidence that the goods were free from interial injuries. Richards v. Doe, 100 Mass. 524.

It was incumbent on the plaintiff to show that the damage to the grapes occurred while they were in the carrier’s possession.

Request numbered 6 was properly denied. The trial judge found as fact that the damage occurred before the grapes were received by the carrier.

There is no error.

Report dismissed.