316 Mass. 516 | Mass. | 1944
These actions of tort are brought to recover compensation for personal injuries sustained by the minor plaintiff and for consequential damages. See G. L. (Ter. Ed.) c. 231, § 6A, inserted by St. 1939, c. 372, § 1. The cases were tried to a jury and now come before us on the plaintiffs’ exceptions to the action of the judge in allowing the motion of the defendant in each case for a directed verdict in his favor.
The evidence would have warranted the jury in finding the following facts. On September 3, 1940, the minor plaintiff, hereinafter referred to as the plaintiff, and some companions were proceeding on bicycles in a northerly direction on Newton Street, in Waltham, behind an ice truck operated by the defendant Wiker (hereinafter called Wiker), which had entered from Calvary Street which crosses Newton Street diagonally. The ice truck was six feet wide and had a cab and in back of the cab a box body for the ice. The plaintiff was riding down grade “five or six feet behind the truck” with his coaster brake on. There was another bicycle in front of him on which two boys were riding. He was in a position to see automobiles approaching from the opposite direction "if he wanted to,” but he did not see any. Wiker stopped his truck suddenly near the intersec
In the circumstances just recited, we are of opinion that there was no error in the action of the judge in granting the motion of the defendant Wiker for a directed verdict in his favor. While the jury could have found that in stopping his truck he did not comply with the municipal regulations relative to giving warning of that action, yet they could not have found properly that his failure to do so bore a causal relation to the plaintiff’s injuries. And negligence "consisting in whole or in part of violation of law, like other negligence, is without legal consequence unless it is a contributing cause of the injury.” Baggs v. Hirschfield, 293 Mass. 1, 3, and cases cited. Notwithstanding the violation of the regulations in question, on the plaintiff’s own story the truck had stopped at the time of the accident and the plaintiff was "standing still” at the left side of the truck and in no danger from it when his bicycle was struck by Cowdrey’s automobile. And had Wiker signaled his intention to stop, the evidence would compel the finding that the plaintiff would still have been unable to stop without hitting the truck, and to avoid this would have had to pass as he did to the side of the truck. There is no evidence to show that Wiker knew or ought to have known of the presence of the plaintiff behind the truck. Upon the evidence most favorable to the plaintiff the jury could not have found properly that any negligence on the part of Wiker contributed to the plaintiff’s injuries. See Falk v. Finkelman, 268 Mass. 524, 527.
With respect to the action against Cowdrey there is nothing in the evidence to indicate that the plaintiff could have been seen by Cowdrey for more than an instant before the collision. It seems obvious that the action of the plaintiff in turning to the left of the truck was so sudden that it could not be found rightly that Cowdrey could have foreseen that the plaintiff would come into contact with his vehicle. The evidence would not have warranted the jury in finding that at the time of the accident Cowdrey was
Since the evidence would not warrant the jury in finding that negligence of either of the defendants contributed to the plaintiff’s injuries, the question whether the plaintiff was in the exercise of due care need not be considered. In each case the entry must be
Exceptions overruled.