Opinion
November 8, 1920.
November 9, 1920.
Present: RUGG, C. J., BRALEY, De COURCY, CROSBY, PIERCE, JJ.
Negligence, Street railway.
Where, at the trial of an action against a street railway company for personal injuries received by a child three years old, who, when upon a public street unattended by any person on a pleasant October day, was run into by an electric street car operated by the defendant, the only evidence tending to show how the accident happened was that a policeman heard a scream, saw the car stop, and, on running about fifty feet, found the plaintiff under the fender close to the front wheel of the car with her face bruised and her clothes over her head, and that he noticed no motor cars, wagons or other electric cars on the street and heard no sound of a gong, a verdict properly may be ordered for the defendant, there being no evidence of negligence of the defendant or of its servants or agents.
TORT for personal injuries. Writ dated December 29, 1916.
In the Superior Court, the action was tried before Hall, J. Material evidence is described in the opinion. At the close of the evidence, by order of the trial judge, the jury found for the defendant; and the plaintiff alleged exceptions.
E.H. Savary, for the plaintiff.
A.E. Pinanski G.E. Morris, for the defendant, submitted a brief.
The plaintiff, who at the time of the injury complained of was three years old, was upon a public street unattended by any person. The only evidence tending to show how the accident happened was that a policeman on a pleasant October day heard a scream, saw an electric car of the defendant stop, and on running about fifty feet found the plaintiff under the fender close to the front wheel of the car with her face bruised and her clothes over her head. He noticed no automobiles, wagons or other electric cars on the street, and heard no sound of a gong. This evidence wholly fails to show any negligence on the part of the defendant or its servants or agents. Bigwood v. Boston Northern Street Railway, 209 Mass. 345. Stangy v. Boston Elevated Railway, 220 Mass. 414. Raymond v. Worcester Consolidated Street Railway, 222 Mass. 396. McNiff v. Boston Elevated Railway, 234 Mass. 252. Anger v. Worcester Consolidated Street Railway, 231 Mass. 163. Boyle v. Worcester Consolidated Street Railway, 231 Mass. 184. Kelley v. Boston Northern Street Railway, 223 Mass. 449. Donahue v. Massachusetts Northeastern Street Railway, 222 Mass. 233.
Exceptions overruled.