Salvietti v. Gormley , 104 Conn. 741 ( 1926 )

At defendant's request, the plaintiff, a boy of fourteen, was helping him gather apples by catching the apples, which defendant, who had climbed the tree, threw to him, and by placing them in a basket. The act of negligence set up in the complaint was either the throwing by the defendant of an apple without having given the plaintiff warning, as he had promised to do, that he was to throw the apple, or the throwing of it when defendant ought to have known the plaintiff was not ready to catch it. The court granted a motion for a nonsuit upon the ground that no reasonable inference could be drawn from the evidence that the defendant threw the apple. The court correctly stated the rule of law governing the granting of a motion for a nonsuit, but, as we think, incorrectly applied the rule to the facts in evidence. Weighing the evidence in the light of our rule, that the evidence submitted by the plaintiff must be assumed to be true, and then drawing every favorable inference of fact that might be reasonably drawn from it, the jury might reasonably have found that the defendant threw the apple which injured the plaintiff. Cook v. Morris,66 Conn. 196, 33 A. 949; Fritz v. Gaudet, 101 Conn. 52,124 A. 841; Colvin v. Delaney, 101 Conn. 73, 79,124 A. 841.

There is error and a new trial is ordered.