Dillon v. Town of Framingham

Rugg, C.J.

This is an action of tort heard before a judge of a district court. The plaintiff seeks to recover compensation for personal injuries alleged to have been received by her while a traveller upon a public way by reason of a defect therein. There was a finding in favor of the plaintiff for substantial damages. The report is unnecessarily long and contains much irrelevant matter. In particular all medical testimony as to the physical condition of the plaintiff should have been omitted because no question of law touching damages was reported. A report ought to state with conciseness and clarity the points of law actually raised with sufficient evidence to enable the appellate court to decide with understanding whether the substantial rights of the parties have been injuriously affected in the light of the issues and the course of the trial. It ought not to be encumbered and obscured by immaterial and unnecessary matter. John B. Frey Co. Inc. v. S. Silk, Inc. 245 Mass. 534, 537 , and cases cited.

There was evidence tending to show that the plaintiff on November 2, 1932, while walking on a sidewalk on a public way in the defendant town, stumbled on the cover of a water gate or water shut-off box which projected about two inches above the gravel surface of the sidewalk, and that it had been in the same condition for about three weeks. The plaintiff fell and received serious injuries. Evidence of witnesses called by the defendant tended to show the height of the projection to be somewhat less than two inches. After a finding in her favor, the evidence must be taken in its aspect most advantageous to the plaintiff. The general finding for the plaintiff imports the drawing of all supporting inferences of which the evidence is susceptible. Royle v. Worcester Buick Co. 243 Mass. 143, 145 . Findings of fact made in an action at law upon conflicting evidence cannot be reviewed by this court. Ashapa v. Reed, 280 Mass. 514 . That such a projection may be found to be a defect in the highway is settled by numerous decisions. O’Brien v. Woburn, 184 Mass. 598 . Thomas v. Winthrop, 222 Mass. 456 . That the condition of the sidewalk had been substantially the same for about three weeks would have warranted *514 a finding that the officials of the town might in the exercise of reasonable care have known of it. Cook v. Boston, 266 Mass. 159 . Redford v. Woburn, 176 Mass. 520 .

Manifestly the first two requests for rulings, to the effect that the plaintiff could not recover, were denied rightly. The third request based on testimony introduced by the defendant as to the projection of the water box above the sidewalk was denied rightly. The trial judge cannot be required by requests for rulings of law to deal specifically with fragmentary portions of the evidence. Ayers v. Ratshesky, 213 Mass. 589, 593 . Bruce v. Johnson, 277 Mass. 273, 275 . Ledoux v. Perry, 284 Mass. 365 . The fourth request was properly refused as not being applicable to the facts found. Levine v. Cohen, 235 Mass. 446 .

A witness called by the defendant testified that he was employed by the water department of the defendant and went to .the place of the accident shortly after it occurred, and he gave evidence as to the conditions found there by him. He was allowed to testify that when a water shut-off box projected above the level of the sidewalk the condition was remedied either by driving the box down or by building the sidewalk up around it. He was then asked “was it necessary to do either of those things in connection with this?” The question was rightly excluded. Whether the condition ought to have been remedied was not a subject of expert testimony but was a matter for the trial judge to pass upon after having found what the condition was. Spillane v. Fitchburg, 177 Mass. 87 . Beaucage v. Mercer, 206 Mass. 492, 500 .

Order dismissing report affirmed.