281 Mass. 386 | Mass. | 1933
This is an action of tort brought by a minor, by her father and next friend, to recover for personal injuries received by her while walking along Newton Street, in the town of Belmont. The case is reported by the trial judge who, on motion filed at the close of the evidence, directed a verdict in favor of the defendant, subject to the plaintiff’s exception.
The defendant, a corporation, owned, managed and controlled a grocery store at the corner of Newton and Belmont streets, with the front entrance on Belmont Street, and a rear entrance on Newton Street. There was a cement sidewalk about four feet wide between the building and the street. The plaintiff testified that on October 27, 1925, at about a quarter to eight o’clock in the evening she and her sister crossed Newton Street, reaching the sidewalk at a point near the rear entrance to the store, and after she had taken two or three steps she stepped into a hole directly opposite the rear entrance and fell and was thereby injured. She further testified that the hole was eighteen inches long and about ten inches wide. Two police officers, called by the plaintiff, testified that the hole was about three to six inches deep, about a foot long, and about six inches wide. One of these officers testified that he lived on
One Casterline, a transportation manager for the defendant, called by it, testified that the defendant had a large warehouse in Somerville, and goods of the defendant delivered to this store were loaded onto trucks either belonging to the defendant and operated by its servants or agents, or belonging to others to whom the defendant paid rates based on the amount of tonnage carried; that the trucks that did not belong to the defendant were operated by the employees of the owners, and that their wages were paid respectively by the owner of each truck; that at the time of the plaintiff’s accident the, defendant owned and operated thirty-five trucks, and between one hundred fifteen and one hundred forty trucks belonging to other people and operated by their respective owners were delivering the defendant’s goods to its stores in eastern Massachusetts and southern New Hampshire; that all of the trucks belonging to the defendant were painted red and bore the letters “ A & P” enclosed in a diamond shaped space painted thereon, and, by arrangement between the defendant and the owners of the other trucks that delivered goods as above stated, about one half were painted the same color as the defendant’s trucks and bore the same letters in a diamond shaped space; that none of the trucks owned by the defendant was equipped with a tailboard; that all trucks were
The tenth interrogatory propounded by the plaintiff was as follows: “Were any heavy bundles, barrels, boxes or other merchandise delivered to or taken from the premises number 267 Belmont Street, Belmont, Massachusetts, in teams or other vehicles that were operated or controlled by the defendant corporation?” The answer to this interrogatory was: “Goods and merchandise customarily delivered or taken from chain grocery stores were delivered or taken from these premises in vehicles operated or controlled by the defendant.”
The foregoing is all the evidence material to the issues presented by the report. The only question of law is whether or not there was any evidence which would warrant a finding that the hole in the sidewalk where the plaintiff fell was caused by a truck owned or operated by a servant or employee of the defendant. The burden of proof rested on the plaintiff to show affirmatively either by direct evidence or by reasonable inference of probabilities from established facts that the negligence of the defendant caused her injury. The testimony of the witness that two or three days before the accident a truck painted red, having the letters “A & P” upon it was backed up to the edge of the sidewalk at the rear entrance to the defendant’s store, and a heavy box was thrown off the truck and afterwards a break was seen in the edge of the sidewalk alone would not warrant a finding that this truck was owned or operated by the defendant. This witness did not testify that the break in
It follows that in accordance with the terms of the report judgment is to be entered for the defendant on the verdict.
So ordered.