Bryne v. Great Atlantic & Pac. Tea Co.

• Decision Date: 15 November 1929
• Parties: BRYNE v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 130

168 N.E. 540

BRYNE

v.GREAT ATLANTIC & PACIFIC TEA CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 15, 1929.

Appeal from Fourth District Court of Eastern Middlesex; J. G. Maguire, Judge.

Action by George M. Bryne against the Great Atlantic & Pacific Tea Company. From an order dismissing the report after finding for plaintiff, defendant appeals. Affirmed.

J. R. Fuller, of Boston, for appellant.

T. J. Maher, of Boston, for appellee.

RUGG, C. J.

The is an action of tort to recover compensation for damage to property alleged to have been caused by the defendant's negligence.

[1] There was evidence tending to show that, pursuant to a contract with the commonwealth to lay water pipes, the plaintiff had stationed a machine known as a Keystone excavator on a public way close to a curbstone and on a part of the street where there had been no excavation; that the street was not closed to vehicular traffic but that back of the machine at different points there were wooden horses of the usual type painted with black and white stripes; that an employee of the plaintiff, while making some minor repairs on the front part of the excavator between eight and ten o'clock in the forenoon of a September day, heard a crash, and going to the rear saw that the front part and roof of the defendant's truck were in contact with the roof and side of the excavator, and that the driver of the truck then backed it away. It was undisputed that the truck belonged to the defendant and was driven by one of its employees acting within the scope of his employment, and that it was in collision with the excavator of the plaintiff. There was a finding in favor of the plaintiff. This finding must stand if there was any evidence to support it. Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N. E. 803.

[2][3] No discussion is required to demonstrate that the unexplained collision of motor truck in the circumstances here disclosed with an object of the size and nature of an excavator stationary on the highway is some evidence of negligence on the part of the driver of the truck. Although the doctrine of res ipsa loquitur does not apply to collisions between moving vehicles on a highway, Reardon v. Boston Elevated Railway, 247 Mass. 124, 141 N. E. 857, it is plain that the principle does apply under the circumstances here disclosed. In the ordinary experience of mankind a moving vehicle does not without negligence of those responsible for it come...