Beckwith v. Inhabitants Town Boylston

CROSBY, Justice. This is an action to recover for personal injuries sustained by the plaintiff while travelling on Melrose street, a public way in Boylston in this commonwealth. The case was referred to an auditor under a rule which provided that the auditor's report should be final as to the facts found. The report in these circumstances constitutes in substance by previous agreement of the parties 'a statement of all the ultimate facts upon which the rights of the parties are to be determined by law.' It becomes in effect a case stated. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 152, 181 N.E. 219; G. L. (Ter. Ed.) c. 231, § 126. The auditor found the following facts: Melrose street is a 'back road.' The plaintiff's son resided in a house on the northerly side of the road, and the accident occurred at a point between fifty and sixty feet westerly of the house of the son. On Sunday, December 20, 1931, at about one o'clock in the afternoon, the plaintiff was proceeding on foot easterly toward the house of his son. There was little or no snow on the road, which was deeply rutted and had many loose stones on the surface varying in size up to six or eight inches in diameter. By reason of this condition it was necessary for the plaintiff continuously to 'weave' or 'pick' his way from one side to the other, and in so proceeding he stepped between three stones of considerable size that were embedded in the northerly side of the road in such a way as to form a rough triangle; they were about a foot from each other, and projected about five inches above the surface. The plaintiff stumbled over one or more of these stones and fell, fracturing both bones of his right wrist. He suffered pain from the injury, and incurred medical expenses by reason thereof; and he sustained a loss of earning capacity. It was further found that the plaintiff was familiar with the condition of the road, having passed over it about every Sunday in 1931. Upon all the evidence the auditor found that the plaintiff was in the exercise of due care at the time of his injury, and that it was caused by the three stones above referred to which constituted a defect in the road. The plaintiff's damages were assessed in the sum of $800. After the report was filed the plaintiff moved in the superior court that judgment be entered in his favor for the amount found. The defendant moved that judgment be entered in its favor on the report. The Judge allowed the plaintiff's motion, and denied that of the defendant subject to its exception.