
    No. 3072
    Northern Middlesex, ss.
    LA FLAMME v. LOWELL
    (Thomas M. A. Higgins)
    (William J. White, Jr.—Hubert L. McLaughlin)
    From the District Court of Lowell Walsh, J.
    Argued Dec. 22, 1941
    Opinion filed Jan. 12, 1942
   PETTINGELL, J. (Jones, P. J., and Sullivan, J.)

Action of tort to recover for personal injuries received by the plain' tiff’s intestate in a fall alleged to have been caused by a defect in the sidewalk. The trial judge found that the plaintiff’s intestate was in the exercise of due care while walking and stumbled or tripped over a projecting granite slab which formed part of the sidewalk. There was a finding for the plaintiff. The error alleged is the refusal to give the following ruling:

“That in view of the proximity of the said Louise La' Flamme’s home to the place where it is alleged he fell, and the frequency in which he walked on the sidewalk and his know!' edge of conditions relative to said sidewalk, this is strong evi' dence of his lack of care.”

The defendant’s contention is that in refusing to give this request, the trial judge failed to give consideration to the evidence which is recited in it.

The duty of the trial judge is to hear the evidence and to decide the case according to applicable principles of law. The parties have a right to request the trial judge to pass upon such principles of law as counsel consider applicable. Requests which are thus presented, if applicable, must be g ranted or must be disposed of, by findings of fact or by explanation, which make them immaterial, or inapplicable. This privilege, however, relates only to requests for rulings of law.' A trial judge cannot be compelled to find facts; requests for such findings have no standing. It is not error for him to deny them. Cameron v. Buckley, 299 Mass. 432, at 434.

In the case at bar the defendant begins his argument by an admission that contributory negligence under these conditions is a factual matter. The request in question, when examined, is purely factual. It states certain facts and then ends by saying that the facts recited are “strong evidence of lack of care." Strong evidence of a thing does not compel a conclusion of law. Evidence of a fact may be strong and yet not conclusive. The request does not conclude -with a prayer or request .to pass upon the evidence .as strong enough to warrant a finding of contributory negligence. It left the issue one in which the trial judge was to consider strong evidence of fact. It implied a possible decision that the evidence was not strong enough to warrant the finding desired. The request, however, was not framed so as to make that) decision reviewable as a question of law. It remained wholly a matter of fact.

The statute places the burden of proving contributory negligence upon the defendant. An affirmative defence is then created. It is rarely that it can foe ruled as matter of law that that burden has been sustained. Linname V. Millman, 261 Mass. 491, at 494. McGrath v. Boston Elevated Ry., 261 Mass. 541, at 544. Hepburn v. Walters, 263 Mass. 139, at 141. Mosher v. Hayes, 288 Mass. 58.

Where only one rational inference can be drawn from the evidence and that an inference of contributory negligence, a question of law for the court is presented. Duggan v. Bay State St. Ry. 230 Mass. 370, at 379. Doyle v. Boston Elevated Ry. 248 Mass. 89, at 91.

As has been pointed out, the defendant admits .that the question of the due care of a plaintiff, under the circumstances here disclosed, was a question of fact. Its main grievance is that the denial of the request indicates that the trial judge did not consider the evidence set forth in the request. In this it is mistaken. The granting of a request for a ruling of law does not imply a finding of the facts to which the request was applicable. Dubois v. Goldstein, 2777 Mass. 139, at 140. By the same reasoning the denial of a request for a ruling does not imply a finding of facts contrary to those in the proposition contained in it. Forbes v. Howe, 102 Mass. 427, at 434.

The legal aspect of the case was not affected by the defendant’s request which called the attention of the trial judge to the strong evidence of lack of care. His duty of weighing the evidence still remained the same, a matter of fact. McDonough v. Vozzella, 247 Mass. 552. Commonwealth v. Destnick, 262 Mass. 408, at 413.

No prejudicial error appearing, the report is to be dis' missed.  