Blackmer v. Toohil - 343 Mass. 269, 178 N.E.2d 274 (1961)

Rule:

A statement by an auditor in an action of tort to recover for personal injuries, that he found "no evidence of" contributory negligence on the part of the plaintiff, a statement referred to by the auditor as a finding, was interpreted by this court as a finding of fact and not as a ruling of law as contended by the defendant. 

Facts:

The pedestrian sustained injuries after she tripped and fell over an oil hose that was laid across the sidewalk. The pedestrian filed a personal injury action against the oil truck owner. An auditor entered a decision for the pedestrian finding that the oil truck owner was negligent and that the pedestrian was not contributorily negligent. The oil truck owner filed a motion to strike the auditor's ultimate conclusions claiming that they were findings as a matter of law. The trial court denied the motion and the appellate court affirmed.

Issue:

Did the subsidiary findings of the auditor warrant such findings by the judge?

Answer:

Yes.

Conclusion:

The court affirmed finding the auditor's findings were not made as a matter of law, but were based upon subsidiary facts. The facts indicated that the agent of the oil truck owner had failed to adopt some method of warning travelers of the presence of the hose. There was no evidence that the pedestrian was contributorily negligent.