Thomas v. Goodies Ice Cream Co. ( 1968 )

I concur in the judgment remanding the cause for further proceedings.

The petition might be improved by the use of motions as suggested, but whatever the frailties the allegations raise the question of the negligence of the defendants, which persists even after the striking of paragraph four of the petition.

Plaintiff is not charged with a violation of law. The law seems clear that the defendants are not insurers of their patrons, and the truck is not an attractive nuisance. In theSidders case (184 N.E.2d 115), the court said that the plaintiff pleaded only generalities and conclusions of law and did not include an allegation of any negligent act or omission.

In the instant case negligent acts are not precisely alleged but sufficiently averred. As suggested by Judge Duffey, where the truck stopped respecting surrounding circumstances, as well as where the children were "around" the truck, whether sales were made on the sidewalk side or street side of the truck, and the equipment on the truck as related to its particular business, are all factors involving the question of negligence. Whether there was no warning given or protection afforded the customers of the defendants remains an issue, and whether under the existing circumstances a reasonably prudent person would have so provided remains for the jury to decide.

I agree that the intervening act of the driver of the Volkswagen does not as a matter of law negate the issue of the possible proximate cause attendant to the possible negligence of the defendants.