275 Mass. 272 | Mass. | 1931
These are actions of tort. The first is brought by a minor, by his next friend, to recover for personal injuries and for damage to his bicycle resulting from a collision with an automobile owned and driven by the defendant; the other is brought by the father of the minor to recover consequential damages. At the close of the evidence for the plaintiffs, the defendant filed a motion in each case for a directed verdict; the motions were granted subject to the plaintiffs’ exceptions. The cases are before us on exceptions to the allowance of these motions.
There is no substantial difference in the evidence. The only persons who testified to the circumstances respecting the accident were the plaintiff in the first action, who will herein be referred to as the plaintiff, one Hazleton and one Lawrence. Neither of the two last named witnesses saw the collision. The accident occurred in a sparsely settled district in the town of Falmouth on a country road; it was a clear day and the road was dry. The plaintiff was riding a bicycle, following an automobile proceeding in a northerly direction and driven by Hazleton, at a distance
The evidence, all of which was offered by the plaintiff, tended to show that he turned suddenly to the left when behind the Hazleton automobile to pass the parked car, and was almost immediately struck by the defendánt’s automobile which was travelling on the right of the center line of the highway. There is no evidence from which it could be found that the defendant saw or could have seen the plaintiff until immediately before the collision occurred. It also appears from the evidence that after the collision the plaintiff and his bicycle were to the left and a little forward, of the left front wheel of the defendant’s car, which was a foot or two to the right of the center of the road as the defendant was going. There is no evidence in the record that would warrant the jury in finding that any negligence of the defendant had a causal connection with the accident. If it be assumed that the defendant was operating his car at a speed which was prima facie greater than was reasonable (G. L. c. 90, § 17), there was nothing to show that the speed was causally related to the collision, Jabhour v
This is a case where it could have been found that neither party was at fault. It is plain that, on the evidence construed most favorably to the plaintiff, no circumstances appear from which an inference can fairly be drawn that the collision was due to any act or omission of the defendant. Horne v. Boston Elevated Railway, 206 Mass. 231. Lydon v. Edison Electric Illuminating Co. 209 Mass. 529, 533. Ashton v. Fall River Gas Works Co. 223 Mass. 20. The mere occurrence of the accident is not in itself evidence of negligence. Reardon v. Boston Elevated Railway, 247 Mass. 124, and cases collected at page 126. Whalen v. Mutrie, 247 Mass. 316.
The cases of White v. Boston & Albany Railroad, 144 Mass. 404, Doyle v. Boston & Albany Railroad, 145 Mass. 386, Melvin v. Pennsylvania Steel Co. 180 Mass. 196, Boutlier v. Malden, 226 Mass. 479, Lamberti v. Neal, 253 Mass. 99, and other cases cited by the plaintiff are distinguishable from the present case.
As there was no evidence to warrant a finding of negligence on the part of the defendant, 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.