Ellis v. Ellison
| Decision Date | 03 April 1931 |
| Citation | 275 Mass. 272,175 N.E. 502 |
| Parties | ELLIS v. ELLISON (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Barnstable County; Fosdick, Judge.
Separate actions by Francis B. Ellis, by his next friend, and by Everett W. Ellis, against Charles M. Ellison. Defendant's motion in each case for a directed verdict was granted, and plaintiff in each case brings exceptions.
Exceptions overruled.
J. D. Bodfish, of Hyannis, for plaintiffs.
H. F. Hathaway, of Boston, for defendants.
These are actions of tort. The first is brought by a minor, by his next friend, to recover for personal injuries and for damage to his bicycle resulting from a collision with an automobile owned and driven by the defendant; the other is brought by the father of the minor to recover consequential damages. At the close of the evidence for the plaintiffs the defendant filed a motion in each case for a directed verdict; the motions were granted subject to the plaintiffs' exceptions. The cases are before us on exceptions to the allowance of these motions.
There is no substantial difference in the evidence. The only persons who testified to the circumstances respecting the accident were the plaintiff in the first action, who will herein be referred to as the plaintiff, one Hazleton and one Lawrence. Neither of the two last named witnesses saw the collision. The accident occurred in a sparsely settled district in the town of Falmouth on a country road; it was a clear day and the road was dry. The plaintiff was riding a bicycle, following an automobile proceeding in a northerly direction and driven by Hazleton, at a distance of from fifteen to twenty feet. Another automobile was parked on his right-hand side of the road and projected for about two feet into the travelled part of the surfaced highway. The plaintiff testified ‘that as he was following the Hazleton car he was going out around the car; that as he started to go out around the parked car he got hit; * * *thathe did not see the car that hit him very long before it hit him; that it was about one minute-second, * * * [he] did not know just how long; that he was twenty feet behind the Hazleton car when he turned out to go by the parked car; that he did not change his course except to follow the Hazleton car; that he did not try at any time to pass the Hazleton car; that the defendant's car was fifteen feet or ten feet away when he first saw it.’ The defendant was travelling in an automobile in the opposite direction from that of the plaintiff and was driving on his right-hand side of the road as he approached and passed the Hazleton car; there was no other traffic and there is no evidence which would warrant a finding that he drove his automobile on the left-hand side of the road at any time.
The evidence, all of which was offered by the plaintiff, tended to show that he turned suddenly to the left when behind the Hazleton automobile to pass the parked car, and was almost immediately struck by the defendant's automobile which was travelling on the right of the center line of the highway. There is no evidence from which it could be found that the defendant saw or could have seen the plaintiff until immediately before the collision occurred. It also appears from the evidence that after the collision the plaintiff and his bicycle were to the left and a little forward of the left front wheel of the defendant's car, which was a foot or two to the right of the center of the road. There is no evidence in the record that would warrant the jury in finding that any negligence of the defendant had a causal connection with the accident. If it be assumed that the defendant was operating his car at a speed which was prima facie greater than was reasonable (G. L. c. 90, § 17), there was nothing to show that the speed was causally related to the collision. Jabbour v. Central Construction Co., 238 Mass. 453, 455, 131 N. E. 194;Rizzittelli v. Vestine, 246 Mass. 391, 141 N. E. 110. If the defendant saw or in the exercise of reasonable care should have seen the boy before the accident, and when he was a considerable distance away, there is no evidence which would warrant a finding that he was lacking in due care or failing in any duty which he owed the plaintiff. There were no intersecting streets near the place of the accident, nor was there any act of the boy showing an intent other than proceeding properly on the right side of the road in the direction in which he was travelling. The cases of Pinto v. Brennan, 254 Mass. 298, 150 N. E. 86, and Cairney v. Cook, 266 Mass. 279, 165 N. E. 406, and like cases, are distinguishable in their facts from the case at bar. The undisputed facts show that the plaintiff was riding his bicycle and following within fifteen or twenty feet of the automobile in front of him; that...
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Alholm v. Town of Wareham
...Falvey v. Hamelburg, 347 Mass. 430, 198 N.E.2d 400 (1964); Jones v. Hayden, 310 Mass. 90, 37 N.E.2d 243 (1941); Ellis v. Ellison, 275 Mass. 272, 175 N.E. 502 (1931). The nature of the burden thus placed on the plaintiffs was most comprehensively set forth in Bigwood v. Boston & N. St. Ry., ......
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