
    
      Western District
    
    S.C. #109576
    D.C. #65 T 335
    WILLIAM P. SMITH v. STANLEY J. JABLONSKI
    Argued: July 6, 1967
    Decided: August 21, 1967
    
      
      Present: Garvey, P.J., Moore, J. and Allen, J.
    Tried to: Walsh, J., in the District Court of Springfield. S.C. #109576 D.C. #65 T 335
   Garvey, P.J.

In this motor tort action, remanded to the District Court of Springfield for trial, there was a finding for the plaintiff in a count for personal injuries and in a count for property damage. The defendant claimed a report. The only issue argued is whether the evidence was sufficient to warrant a finding that the defendant was the operator or owner of a motor vehicle that was in collision with the motor vehicle of the plaintiff’s.

The reported evidence shows that on December 28, 1963, the plaintiff in the early morning, while it was still dark, snowing, and the wind blowing was operating his car on a state highway in Agawam, Massachusetts. It collided with the defendant motor vehicle that was parked at an angle so that a portion of its rear extended into the plaintiff’s travel lane. The plaintiff was injured and his car damaged. We quote from the report questions put to the plaintiff by his attorney and his answers.

Ross and Ross of Springfield for the Plaintiff.

Robert E. Athas of Waltham for the Defendant.

Q. “After the accident did someone come over to you and talk to you?” A. “Yes”.

Q. “What did he say to you?” A. “He said that he was Mr. JaMonski.”

The plaintiff asked him, “How come your car is parked in the road?” He said 11 My gasoline froze ’ ’.

Ho other evidence appears in the report as to the identify of the defendant.

We have held this day in Varisco v. Malovin, District Court of Springfield, #180308, on similar facts, that the evidence was insufficient to warrant a finding that the defendant was the owner or operator involved in a collision with the plaintiff’s motor vehicle. Hothing is to be gained by repeating our reasoning as set forth in that decision.

It was error to deny the defendant’s request for a ruling on this issue. The finding for the plaintiff is to be vacated and judgment is ordered for the defendant.  