281 Mass. 200 | Mass. | 1932
The plaintiff excepted to the entering of a verdict for the defendant by leave reserved (G. L. [Ter. Ed.] c. 231, § 120), after the jury had returned a verdict for the plaintiff. The question is whether the evidence warranted a verdict for the plaintiff.
The plaintiff, fourteen years old, on his way to school about eight o’clock in the clear morning of October 25, 1926, signalled a truck about to go up a hill on North Main
No evidence of the conduct of the defendant was offered, except that the plaintiff testified that he heard no horn. If the plaintiff was in such a position that his failure to hear a horn is evidence that none was sounded (Hough v. Boston Elevated Railway, 262 Mass. 91, 93, 94; Cairney v. Cook, 266 Mass. 279), there is nothing to show that the defendant had reason to anticipate the plaintiff’s act in season to give effective warning by a horn. When a person suddenly gets off the rear of a moving truck, even a careful driver of a following automobile may be unable to avoid an accident, either by stopping or by changing his course, not knowing which way the person alighting will turn. Gavin v. Jacobs, 259 Mass. 23. The fact that the plaintiff, before getting off, looked back and saw no automobile within a “block,” is no evidence of undue speed by the defendant, for the length of the “block” and the speed of the truck did not appear. There is scarcely more in this case than the mere happening of the injury, to show negligence of the defendant. Whalen v. Mutrie, 247 Mass. 316. Ellis v. Ellison, 275 Mass. 272. Engel v. Checker Taxi Co. 275 Mass. 471. The plaintiff did not sustain his burden of presenting evidence warranting a finding that the defendant was negligent. Gavin v. Jacobs, 259 Mass. 23.
Exceptions overruled.