107 Mass. 104 | Mass. | 1871
1. Whether the defendant was in fault in leaving the truck in the street, or in leaving it insecure, and whether the occurrence, by which the plaintiff received his injury, was one which might reasonably have been apprehended as the result of .Finch negligent conduct, and was in fact a result thereof, were questions for the jury; the burden of proof being on the plaintiff.
2.. If these points should be found in favor of the plaintiff, the fault of the older boy, Horace Lane, in moving the tongue of the truck, would not prevent recovery from the defendant, although it contributed to the result. It would be otherwise, of course, if the misconduct of Horace Lane should be found to be the sole, direct or culpable cause of the injury.
3. Whether the plaintiff participated in the wrongful conduct of Horace Lane was also clearly a question for the jury.
4. The remaining question, and that, as we suppose, upon which the verdict was ordered for the defendant, is, whether the plaintiff was shown to be in the exercise of due cáre on his part, in going to the place and standing so near the truck while Horace Lane was attempting to move it. Upon this point, we are of opinion that the evidence reported does not conclusively show negligence or fault on his part; and that the question whether he was in the exercise of proper and reasonable care should have been submitted to the jury upon all the circumstances of the case. Mayo v. Boston & Maine Railroad, 104 Mass. 137.
Verdict set aside.