Gibson v. Cavanagh , 310 Mass. 827 ( 1941 )

This action of tort to recover compensation for personal injuries, sustained by the plaintiff when as a pedestrian he was struck by an automobile, operated by the defendant, was tried to a jury upon an auditor’s report and other evidence including testimony of the plaintiff. There was a verdict for the plaintiff. The defendant excepted to the denial of a motion for a directed verdict for him. His sole contention is that the plaintiff was not in the exercise of due care and for that reason cannot recover in this action. The auditor found that the plaintiff was in the exercise of due care. This finding was evidence for the jury since there were no subsidiary findings so inconsistent therewith as to destroy its evidential value. See Cook v. Farm Service Stores, Inc. 301 Mass. 564, 565. But even apart from this finding nothing in the facts essential to establish the plaintiff’s case on the issue of negligence and no evidence binding on the plaintiff required, as matter of law, a finding that the plaintiff was not in the exercise of due care. The motion was denied rightly.