280 Mass. 508 | Mass. | 1932
The report of the trial judge shows that the defendant was backing a one and one half ton truck from Sumner Street into Sumner Place in Boston, and saw or should have seen a large stone, six or seven inches in diameter and weighing ten or twelve pounds. The left rear tire of the truck came in contact with the stone, squeezing it and throwing it to the sidewalk, where it hit the plaintiff who was passing. The trial judge said, “Upon these facts, I find and rule as a matter of law that the defendant was negligent. ... If my ruling is incorrect as a matter of law, a finding should be entered for the defendant.” He denied the defendant’s request for a ruling that “On all the evidence the defendant was not negligent.” The Appellate Division sustained the trial judge and dismissed the report. The defendant’s appeal brings the case here.
Doubt arises as to what ruling the trial judge intended. Even when the conduct of a party is ascertained, the question whether it comes up to the standard of reasonable care prescribed by the law ordinarily must be decided by the tribunal
Interpreted thus favorably to the decision below, the report shows that there was error in the ruling that the evidence warranted a finding for the plaintiff and in the refusal of the defendant’s request to the contrary. The throwing of the stone, while not unprecedented, was such an unusual occurrence under the circumstances that it could not be found that the defendant in the exercise of reasonable care ought to have guarded against it. Burkes v. Lieberman, 218 App. Div. (N. Y.) 600, affirmed, 245 N. Y. 579.
Order of the Appellate Division reversed.
Judgment for the defendant.