Case Summary: Ramoni Conte v. Guy Mizzoni (Supreme Judicial Court of Massachusetts, 1937)

Factual and Procedural Background

This is an action in tort to recover compensation for personal injuries sustained in August, 1935, by the plaintiff, then five years old, who was struck by a motor vehicle operated by the defendant on a public street. The writ originated in the Municipal Court of the City of Boston (dated August 16, 1935) and, on removal to the Superior Court, the case was referred to an auditor. The auditor's findings were not final. The case was later tried to a jury before M. Morton, J., following the auditor's report. A witness called by the plaintiff, sitting in a parked automobile on Prince Street, testified that the street was wide enough for three cars, there was no other vehicular traffic, and that the plaintiff suddenly ran from in front of the parked car toward a vacant lot across the street and was struck by the right front bumper of the defendant's automobile, which the witness estimated was traveling between ten and twelve miles an hour. The child's mother testified that the defendant told her he was sorry he struck the child and that he did not see the child before she was struck; she also testified regarding other small children she was nursing. The defendant offered no evidence other than the auditor's report. At the close of the evidence, on motion of the defendant, a verdict was directed in his favor. The plaintiff alleged exceptions to that ruling.

Legal Issues Presented

Whether the evidence presented by the plaintiff was sufficient to warrant a finding of negligence on the part of the defendant for striking the child.
What evidential effect the auditor's report had (as prima facie evidence) and whether the plaintiff's evidence was sufficient to overcome or control that report.
Whether a directed verdict for the defendant was proper given the record.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lovell v. Commonwealth Thread Co. Inc. 280 Mass. 243, 246	That an auditor's report is prima facie evidence of matters embraced in the order of reference and, if unexplained, maintains the proposition it asserts.	Used to support the proposition that the auditor's report, being in favor of the defendant and unexplained, had special evidential value and required acceptance unless controlled by evidence.
Wakefield v. American Surety Co. 209 Mass. 173, 176	Reinforcement of the rule that an auditor's report is prima facie evidence of the facts found.	Cited as authority for treating the auditor's report as having special evidential value absent controlling evidence.
Scott v. Lieberman, 284 Mass. 325, 327	Further authority for the evidential weight of an auditor's report.	Relied upon to confirm that an unexplained auditor's report warrants acceptance by judge or jury.
Savin v. Block, 297 Mass. 487	Noted as not inconsistent with the foregoing principle regarding auditor's reports.	Referenced to show consistency of authorities concerning the auditor's report's evidential effect.
Lovett v. Scott, 232 Mass. 541, 542	Authority on situations where a plaintiff suddenly comes into the path of a vehicle and the driver cannot see the plaintiff until an instant before collision.	Cited as one of several authorities demonstrating that such evidence alone does not warrant a finding of driver negligence.
Rizzittelli v. Vestine, 246 Mass. 391, 392	Similar principle regarding sudden entrance into a vehicle's path and insufficiency to establish negligence.	Applied as supporting authority that the plaintiff's showing fell within established precedent negating sufficiency for negligence.
Whalen v. Mutrie, 247 Mass. 316, 318	Same line of authority concerning sudden appearances of pedestrians and driver liability.	Listed among cases showing the plaintiff's evidence did not warrant a negligence finding.
McGrimley v. Jameson, 297 Mass. 280	Another authority affirming that sudden entry into a vehicle's path, when the vehicle is moving slowly, does not alone show negligence.	Relied upon to support the conclusion that the plaintiff's evidence was insufficient to overcome the auditor's report or to warrant a verdict for the plaintiff.

Court's Reasoning and Analysis

The court first emphasized the evidential status of the auditor's report: under G.L. (Ter. Ed.) c. 221, § 56, an auditor's report is prima facie evidence of matters embraced in the order of reference and, if unexplained or uncontested, carries special evidential value requiring its acceptance as final by judge or jury. The court cited multiple authorities to support this treatment and noted nothing in Savin v. Block was inconsistent with that principle.

Turning to the plaintiff's evidence, the court recited the witness's account that the child suddenly ran from in front of a parked car toward a vacant lot and was struck; that the defendant's automobile was moving at an estimated ten to twelve miles per hour; that the child could not have been seen more than an instant, if at all, before impact; and that weather and street conditions were clear and dry. The court characterized this showing as going no further than to show that the child suddenly came into the defendant's path while the automobile was traveling at a comparatively slow speed and that the child could not have been seen until an instant before collision.

The court then placed the case within a body of precedent holding that such evidence alone does not warrant a finding of negligence by the driver. Because there was no evidence that controlled or contradicted the auditor's report, the report retained its prima facie force and the plaintiff's proof was insufficient to overcome it. On that basis, the court concluded the trial judge properly directed a verdict for the defendant.

Holding and Implications

Holding: The directed verdict for the defendant was proper and the plaintiff's exceptions were overruled; the verdict was rightly directed in favor of the defendant.

Implications: The direct effect of the decision is that the plaintiff's action did not succeed and the defendant prevailed. The court applied existing authorities concerning the evidential weight of an auditor's report and the rule that evidence showing a child suddenly darting into the path of a slowly moving automobile, without more, is insufficient to establish driver negligence. The opinion does not discuss broader implications beyond the case; no new precedent was announced.

Show full summary ...

RAMONI CONTE vs. GUY MIZZONI.

Negligence, Motor vehicle, In use of way.

A finding of negligence of the driver of an automobile would not have been warranted by evidence merely that while going slowly it struck a child who suddenly ran into its path from in front of a vehicle parked at the side of the street.

RUGG, C.J.

This is an action of tort to recover compensation for personal injuries sustained in August, 1935, by the plaintiff, then five years old, against the operator of a motor vehicle which struck the plaintiff on a public street. The case was referred to an auditor, whose findings of fact were not final, and then was tried to a jury.

A witness called by the plaintiff testified that he was sitting in his automobile parked on the side of Prince Street in Boston at number 124, facing in the same direction as that in which the defendant was proceeding, and saw the accident; that the street was "wide enough for three cars"; that there was no other vehicular traffic in either direction; that on the opposite side of the street was a vacant lot, used as a playground for children for many years; that it was "a congested tenement, residential and thickly populated with children location"; that the plaintiff while "running moderately across the street from the even numbered side to vacant lot from in front of the car in which the witness was seated" "was struck by the right front bumper of the car" of the defendant; that as a result of the impact the child was thrown forward about fifteen feet and the automobile of the defendant continued forward about half that distance; that the weather was clear and the street dry; and that the estimated speed of the automobile of the defendant was between ten and twelve miles an hour. The mother of the plaintiff testified that the defendant told her that he was sorry that he struck the child, but that he did not see the child before she was struck; that the witness had two other small children whom because of illness she was nursing at the time. This was in substance all the evidence introduced by the plaintiff. The defendant offered no evidence other than the auditor's report. At the close of the evidence, on motion of the defendant a verdict was directed in his favor.

The auditor's report is not embodied in the exceptions. All that is disclosed concerning it is that it was in favor of the defendant. An auditor's report is prima facie evidence of such matters as are embraced in the order of reference. G.L. (Ter. Ed.) c. 221, § 56. In the absence of controlling evidence either set forth in, or introduced outside, the report, the statute gives it such special evidential value as to require its acceptance as final by judge or jury. "It cannot be disbelieved as can the uncontradicted testimony of a witness. Since it is prima facie evidence of the truth of the facts found, if it stands alone and is unexplained, it maintains the proposition, and warrants and even requires the conclusion to support which it is introduced." Lovell v. Commonwealth Thread Co. Inc. 280 Mass. 243, 246. Wakefield v. American Surety Co. 209 Mass. 173, 176. Scott v. Lieberman, 284 Mass. 325, 327. There is nothing inconsistent with this in Savin v. Block, 297 Mass. 487.

The evidence introduced in behalf of the plaintiff and already narrated was not sufficient to support a finding of negligence on the part of the defendant. It goes no further than to show that the plaintiff suddenly came in the path of the automobile of the defendant travelling at a comparatively slow speed and could not have been seen more than an instant if at all before the collision. On this point the case falls within the scope of numerous authorities. Lovett v. Scott, 232 Mass. 541, 542. Rizzittelli v. Vestine, 246 Mass. 391, 392. Whalen v. Mutrie, 247 Mass. 316, 318. McGrimley v. Jameson, 297 Mass. 280. There was no evidence to control the effect of the auditor's report.

The verdict rightly was directed in favor of the defendant.

Exceptions overruled.

CONTE v. MIZZONI