315 Mass. 684 | Mass. | 1944
Marchant, the operator of a large tank truck owned by the corporate defendant, drove the truck along Huntington Avenue, in Boston, in the middle of a pleasant afternoon in March, 1941, and stopped the truck near the curbing in order to deliver fuel oil into the tank located upon the premises at 90-92 Huntington Avenue. He testified that he unreeled the hose which was located in a box on the side of the truck — the bottom of the box being about a foot and one half above the street level — by pulling the hose across the sidewalk and upon the premises of the customer, where he took off the cap of the pipe which leads into the building and connected the nozzle of the hose with this pipe, which was about a foot above the ground; and that he turned around and had taken two or three
The defendants contend that the evidence was insufficient to prove that the injuries were due to the defendants’ negligence; that whether the plaintiff’s fall was caused by the hose was a mere matter of conjecture or surmisé; and that as matter of law the plaintiff was guilty of contributory negligence.
In the first place, there was an entire absence of any evidence that the plaintiff’s fall was caused by any other object than the hose; she sustained the burden of proving that the hose was the cause by introducing evidence that there
The want of due care upon the part of the plaintiff was an affirmative defence with the burden resting upon the defendants. There was evidence that the plaintiff had looked along the sidewalk a short distance back from the place of the accident and saw nothing in the way of an obstruction. She could assume to some extent that it was safe for her to proceed and that if an obstruction was on the sidewalk she
Exceptions overruled.