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eBook details

• Title: Runnells v. Cassidy
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 30, 1940
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

FIELD, Chief Justice. The plaintiff seeks in this action to recover compensation for personal injuries sustained by him while in the performance of his duties as a police officer of the city of Springfield, resulting from negligence of the defendant in the course of removing a milk wagon from a hole in a street with the aid of a 'towing car.' The case was referred to an auditor whose findings of fact were not to be final. The auditor found for the plaintiff. The case was tried to a jury upon the auditor's report and testimony of witnesses, including the plaintiff and the defendant. There was a verdict for the plaintiff. To the denial of a motion of the defendant for a verdict in his favor, the defendant excepted. The sole contention now made by him is that this motion should have been granted, for the reason that the plaintiff as matter of law on the evidence was guilty of contributory negligence. This contention cannot be sustained. The burden of proving contributory negligence of the plaintiff was on the defendant. G.L.(Ter.Ed.) c. 231, § 85. The auditor, however, found affirmatively in express terms 'that the plaintiff was in the exercise of due care when this accident happened.' This ultimate finding did not purport to be based solely upon the subsidiary findings of the auditor and consequently imported findings of subsidiary facts -- not necessarily inconsistent with express subsidiary findings -- sufficient to support the ultimate finding. Murphy v. Smith, Mass., 29 N.E.2d 726.

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