Lourie v. Town Taxi, Inc.

Roberts, J. This is a motor vehicle tort case and involved the .collision of two cars at the intersection of Boylston and Jersey Streets, public highways in the city of Boston. The issues were joined by a general denial and a plea of contributory negligence. Agency of the driver was not in dispute. The plaintiff’s driver gave evidence that he was not at the time and place of the accident on any business of the plaintiff. Further, it could have been found on his evi [42] dence that the defendant driver was negligent and the judge rightly ruled on the plaintiff’s requests that a finding for the plaintiff would be warranted. Most of the plaintiff’s “requests” were for findings of fact which were rightly denied. Sidney Blumenthal of Boston for the Plaintiff. The issue raised on argument involved the denial of the plaintiff’s fourth request: “(4) On establishing that the defendant’s cab was operated negligently, the plaintiff is entitled to recover, as a bailor.” This request was denied as inapplicable and the court made the following finding of fact in its denial: “The plaintiff did not sustain the burden of proof that the cab was operated negligently.” Regardless of the issue of bailment, Nash v. Long, 268 Mass. 407, the burden was on the plaintiff to prove negligence and rarely can it be ruled as a matter of law that the party having the burden of proof has sustained that burden. Coleman v. N.Y.N.H. & H.R.R., 215 Mass. 45, 47; Winchester v. Missin, 278 Mass. 427, 428; Hoffman v. Chelsea, 315 Mass. 54, 56. On this issue the court having found that the plaintiff failed to maintain his burden, the appeal cannot be sustained. “Further discussion would be superfluous in view of recent decisions in which the subject has been exhaustively treated with a full citation of cases.” Norton v. Tilton, 325 Mass. 79, 80. Report dismissed.