Zarrillo v. Stone

WILKINS, Justice. This is an action of tort for injuries received by an occupant of an automobile by reason of alleged negligent operation of an automobile by the defendant. The trial Judge found for the plaintiff. The Appellate Division dismissed the report, and the defendant appealed. The report states that there was evidence tending to show the following, which is described as all the evidence material to the questions reported: On July 15, 1943, the defendant was driving a truck on the Concord turnpike in Arlington toward Boston. The plaintiff was sitting in an automobile parked on the right of the road, all but two feet of the automobile being off the travelled way. The defendant was moving downgrade about twenty-five to thirty miles an hour when he observed the automobile occupied by the plaintiff about two hundred feet ahead. The defendant slowed down because there were traffic lights about four to five hundred feet ahead of the parked automobile. When the defendant was passing the parked automobile, his right front tire 'blew out' and his truck struck the automobile, 'blowing out the left rear tire' of the automobile and injuring the plaintiff. The defendant was then travelling about twenty miles an hour, and he brought his truck to a stop in about thirty-five feet. The defendant testified that the tire on his truck that blew out had not been repaired or patched, had a good tread, was in good condiiton, and had gone about eight thousand to ten thousand miles. The defendant presented the following requests for rulings: '1. The evidence does not warrant a finding that the defendant was negligent. 2. The evidence warrants a finding for the defendant. 3. If the defendant was operating an automobile at the time of the alleged accident and a tire which was apparently sound blew out causing the car to strike the parked vehicle which the plaintiff occupied, a finding of negligence on the part of the defendant would not be warranted. 4. The doctrine of res ipsa loquitur does not apply.' The trial Judge found 'as a fact that the defendant was negligent in the operation of his automobile and that such negligence caused the accident.' He granted the fourth request, but 'in view of the above finding' denied the remaining requests.