Whalen v. Mutrie , 247 Mass. 316 ( 1924 )

Carroll, J.

On May 9, 1921, the plaintiff’s intestate received fatal injuries, from a collision with the defendant’s automobile truck, on Dorchester Avenue, a public highway in the city of Boston. The truck, at the time of the accident, was operated by an employee of the defendant, engaged in his employer’s business. The jury viewed the scene of the accident.

There was evidence that the deceased was sixty years of age, and of good health, hearing and eyesight. The only testimony concerning the accident came from one witness, who testified that as he was crossing Dorchester Avenue, he saw the plaintiff’s intestate killed, about half past seven o’clock in the morning; that he did not see him until he was under the truck; that “ the right front wheel ” had gone over him and “ a hind wheel pressed on him ” and the truck was stopped; that he didn’t see where Whalen came from or where he was going but he saw him fall. In response to a question from the court, “ Did you see Whalen before the instant that he was hit? ” he said, “ No, sir; ” and in answer to the question, “ Where was Whalen the first sight of him you had? ” the witness stated, “ The first time I see him he was falling and the truck on top of him.” He further testified that the morning was clear; that he saw people crossing the street, but no other automobiles were moving; that as the defendant’s truck came toward the witness and after it passed him, its direction was not changed and no horn was blown; “that as the witness was crossing the street . . . he kept his eyes on the truck; ... I started off from the sidewalk and walked ordinary way, but as soon as I see this truck come fast I just skipped like that and turned my head and look to see.”

No evidence was offered by the defendant, who moved for a directed verdict. The jury found for the plaintiff, and the trial judge reserved leave, with the assent of the jury, under G. L. c. 231, § 120, to enter a verdict for the defendant. The defendant then moved that a verdict be entered under the reserved leave, which motion was allowed and the plaintiff excepted.

There was no evidence of the defendant’s negligence. The intestate was not seen by any one until the instant he was struck; where he came from, what he was doing, whether walking or running, in what direction he was moving, is entirely a matter of conjecture: there is nothing to show how the accident happened. The burden of proof to show the defendant’s negligence was upon the plaintiff, and such negligence cannot be inferred, in a case like this, merely from the happening of the accident. Reardon v. Boston Elevated Railway, ante, 124. Jabbour v. Central Construction Co. 238 Mass. 453. Nager v. Reid, 240 Mass. 211. Baglio v. Director General of Railroads, 243 Mass. 203. Rizzittelli v. Vestine, 246 Mass. 391. The fact that when the witness saw the truck it was going “ fast ” is too indefinite, without anything to indicate the rate of speed, to warrant a finding of negligence. Selibedea v. Worcester Consolidated Street Railway, 223 Mass. 76. O’Donnell v. Bay State Street Railway, 226 Mass. 418. There was no evidence to prove that the driver of the truck saw the plaintiff’s intestate, or in the exercise of proper - care could have seen him until the moment of the collision; it could not have been found that the failure to blow the horn contributed to the accident. See Lovett v. Scott, 232 Mass. 541.

Exceptions overruled.