Broult v. Hanson , 158 Mass. 17 ( 1893 )

Knowlton, J.

The instruction requested by the plaintiff involves two propositions: first, that if the defendants’ team, passing along unattended, came in contact with the plaintiff’s team, which was left standing at the side of the street on the left hand of the defendants’ team as it approached, that would be prima facie evidence of the defendants’ negligence. Secondly, that in such a case the burden would be on the defendants to satisfy the jury that they were not negligent.

To support the first proposition, the plaintiff relies on the Pub. Sts. c. 93, § 1, which require that, “ when persons meet each other on a bridge or road, travelling with carriages, wagons, carts, sleds, sleighs, or other vehicles, each person shall seasonably drive his carriage or other vehicle to the right of the middle of the travelled part of such bridge or road,” etc. We are of opinion that this statute is not applicable to the present case, in which it is agreed that both the teams were left unattended, and that, at the time of the collision, no persons met each other travelling with the vehicles which collided. Lovejoy v. Dolan, 10 Cush. 495. Garrigan v. Berry, 12 Allen, 84.

It is not argued that the slow movement of a heavy team along a street with a driver temporarily absent would in itself alone be prima facie evidence of negligence on the part of the driver; see Southworth v. Old Colony & Newport Railway, 105 Mass. 342; but if it would, the instruction requested could not have been given; for it has often been decided that, in a case of this kind, the burden of proof remains on the plaintiff, as well after as before the introduction of prima facie evidence of negligence. A prima facie case calls for the introduction of evidence on the other side to meet it. If evidence of equal weight is introduced, so that the two sides are in even balance, the plaintiff fails. Powers v. Russell, 13 Pick. 69. Central Bridge v. Butler, 2 Gray, 130. Nichols v. Munsel, 115 Mass. 567. Exceptions overruled.