Hew v. Michaelidis

Martin, J. The plaintiff appeals the failure of the trial justice to allow certain requests filed by him. We affirm the trial justice. This is an action in tort wherein the plaintiff seeks to recover damages for personal injuries sustained as a result of the alleged negligent operation of a motor vehicle by the defendant. The defendant, as to his request, #2, such a request is the equivalent of a request that a finding is required as a matter of law. Mishara v. Albion, 341 Mass. 652, 656 (1961). Where the facts depend upon oral evidence, which the judge is not required to believe or accept, rarely, if ever, can such request be given. Gilbert & Davis Caterers v. Gross, 56 Mass. App. Ct. 177, 182. The denial of request #7 was proper as it assumed a fact contrary to the facts as found by the judge. Wood v. Spedoni, 328 Mass. 483, 485 (1952); Dolham v. Peterson, 297 Mass. 479, 481-482 (1937). The denial of request #8 was proper as it called for a mixed question of fact and law. The judge was not required to find as a fact that the defendant was speeding. The denial of request #9 was proper as it called for findings of fact and violated the “fragment rule,” see Liberatore v. Framingham, 315 Mass. 538, 543 (1944); Gibbons v. Dennoncourt, 297 Mass. 448, 454 (1937); Halnan v. New England Telephone & Telegraph Co., 296 Mass. 219, 223, and cases cited. There are no prejudicial errors. The report is dismissed. So ordered.