Gregoire v. O'Leary

Exceptions overruled. The declaration in this action of tort contains two counts. In the first, the plaintiff seeks damages for personal injuries; in the second, he seeks to recover for property damage to his automobile. At the trial the judge ordered a verdict for the defendant on both counts, subject to the plaintiff’s exception. The plaintiff now presses his exception only with respect to the count for personal injuries. The defendant concedes that on August 23, 1956, her automobile came into contact with an automobile driven by the plaintiff in circumstances that would warrant a finding that the defendant was negligent and that the plaintiff was in the [728] exercise of due care. The sole question is whether the plaintiff sustained the burden of proving beyond conjecture that the injuries which he claimed to have suffered were causally related to the collision. We are of opinion that he did not. The evidence here fell short of that in McAuliffe v. Metcalfe, 289 Mass. 67, Comeau v. Beck, 319 Mass. 17, and Josi’s Case, 324 Mass. 415, on which the plaintiff relies. Since the plaintiff’s ease is grounded on negligence he would not be entitled to nominal damages, and, actual damage attributable to the accident not having been established, the judge rightly ordered a verdict for the defendant. See Daniels v. Celeste, 303 Mass. 148, 152. John M. Fitzgerald, for the plaintiff. Charles V. Ryan, Jr., for the defendant.