Gustafson v. Metropolitan Transit Authority

Order dismissing report affirmed. The plaintiff in this action of tort seeks to recover for personal injuries alleged to have been sustained as a result of being struck by a bus of the defendant. The judge made brief findings of fact and ordered judgment for the defendant. A report to the Appellate Division was dismissed and the plaintiff appealed. The questions for decision arise out of the judge’s denial of the plaintiff’s requests numbered 1, 2, 3, and 5. We need not concern ourselves with the fifth request. Viewed as a request for a ruling of law it assumed the existence of facts which the judge did not and was not obliged to find. Cameron v. Buckley, 299 Mass. 432, 434. If treated as a request for a finding of fact it was properly denied. Dolham v. Peterson, 297 Mass. 479, 481. The first and third requests in effect asked for rulings that a finding for the plaintiff was warranted. The second request asked the judge to rule that a finding was warranted that the plaintiff was not guilty of contributory negligence. No prejudicial error has been shown. It is apparent from reading the findings of the judge that she con770 eluded that the plaintiff had not established any negligence on the part of the defendant and that she refused the requests just discussed as inapplicable because of what she had found. See Liberatore v. Framingham, 315 Mass. 538, 544. True, the crucial finding in the case was couched in the language of a ruling, but we are satisfied that it was intended to be a finding of fact. From a reading of the decision of the trial judge we are satisfied that the finding for the defendant was not due to the application of incorrect principles of law. Philip A. Tracy, for the plaintiff. Arthur L. Learson, for the defendant.