Franca v. Rubin

Rugg, C.J. This is an action of tort by a boy between four and five years old to recover compensation for injuries alleged to have been received during the afternoon of an August day on Bennington Street in East Boston. The complete recital of facts or evidence in the report of the trial judge is in these words: “The defendant was driving his automobile along Bennington Street towards Central Square at fifteen miles per hour when the plaintiff was struck by some part of the right side of the automobile. The plaintiff introduced evidence of the manner in which the defendant’s automobile was being operated. The defendant introduced evidence that the plaintiff ran off the sidewalk and into the right hand side of the defendant’s automobile. The plaintiff’s mother testified that she allowed her four year old son to go out on the street with two boys nine and thirteen'years respectively, named John and Albert, but whose last names were unknown to her although they lived in the same house in which she lived; that the last time her son had been in [593] the house was about noon, and she had seen him upon the sidewalk at fifteen minute intervals.” The report of the trial judge concludes in these words: “This report contains all the evidence material to the questions reported. The defendant claiming to be aggrieved by the denial of the motion for the defendant’s finding and by the rulings and refusals to rule as requested, I hereby report the same to the Appellate Division for determination.” . Request 3, to the effect that the plaintiff had not proved by a preponderance of the evidence that the defendant was negligent, ought to have been granted. There is nothing in the record to show the traffic and other conditions attendant upon the driving of the automobile by the defendant. The rate of speed does not appear to have exceeded that permitted by G. L. c. 90, § 17. There is nothing on the evidence reported to justify a finding that the defendant was negligent. The judge by granting request 4 instructed himself that a “child of the age of this plaintiff is presumed to be incapable of exercising due care for himself.”. We need not inquire whether this was right, see Sullivan v. Boston Elevated Railway, 192 Mass. 37, 43, 44, because the defendant cannot complain of it and the trial proceeded on the theory that that was the law. That being so, request 13, to the effect that, if the plaintiff has not proved that his custodians were in the exercise of due care with regard to their custody of him, the plaintiff cannot prevail, and request 16, to the effect that in order to recover the plaintiff must prove by a preponderance of the evidence that his mother was careful in the selection of his custodians and that the custodians exercised due care in the control of the plaintiff, were granted. Having thus instructed himself as to the law, the trial judge was bound to find for the defendant because there is no evidence in the record that the custodians exercised due care or any care to protect the plaintiff. The plaintiff in this respect is not aided by the statute as to the presumption of due care. G. L. c, 231, § 85. Bullard v. Boston Elevated Railway, 226 Mass. 262, 267. Sullivan v. Chadwick, 236 Mass. 130, 134. Stachowicz v. Matera, 257 Mass. 283. It may be remarked in passing that the granting of request 16 [594] was in part erroneous because, if the custodians had in truth exercised due care for the welfare of the plaintiff, the due care of the mother in their selection would have been of no consequence. The question, whether the plaintiff might prevail on the due care of the mother, need not be considered because it is plain from requests .granted and refused by him that the trial judge, if he followed his own instructions as to the law, as must be assumed, could not in the opinion of a majority of the court have rested his decision on this ground. It is not necessary to examine the requests in further detail or to discuss the motion for a finding for the defendant. It is manifest that there was a mistrial. It may well be that the record is not fair to the plaintiff. But we cannot so decide as matter of law. We are bound by the statement that it "contains all the evidence material to the questions reported.” The record, however, is too meagre to warrant us in ordering judgment for the defendant. Of course evidence need not be set out in detail. It ought to be stated summarily. But where the pose turns on questions of due care and negligence there must be something on these subjects in the record, if there was evidence bearing on them. Order dismissing report reversed. Case to stand for a new trial.