Opinion
March 2, 1966.
Nathan Greenberg for the plaintiff.
William J. McCluskey for the defendant.
This is an action of tort to recover for injuries suffered on February 19, 1960, when the plaintiff was struck by a trailer which separated from a tractor leased by the defendant to the plaintiff's employer. The action was heard initially by an auditor who found for the defendant. The case was again tried in the Superior Court before a jury. The case is here on exceptions to the direction of a verdict for the defendant. There was no evidence that the tractor was defective when delivered to the plaintiff's employer on February 18, 1960. A fellow employee of the plaintiff testified that he "made 200 to 300 trips with his tractor from 1:00 P.M. to the time of the accident [at 8:45 P.M.]." No inference against the defendant can be drawn from testimony that the tractor was defective at the time of the accident since the plaintiff did not satisfy the burden of showing that the tractor had not been improperly handled after it left the control of the defendant. Evangelio v. Metropolitan Bottling Co. Inc. 339 Mass. 177, 183. Selissen v. Empire Bottling Co. Inc. 343 Mass. 779. The case of Flaherty v. New York, N.H. H.R.R. 337 Mass. 456, relied on by the plaintiff, is easily distinguishable from the facts in the instant case. There was no error.
Exceptions overruled.