Mazzaferro v. Dupuis
| Decision Date | 04 November 1947 |
| Citation | 75 N.E.2d 503,321 Mass. 718 |
| Parties | ERMINIO MAZZAFERRO, administrator, v. ALBERT J. DUPUIS(and a companion case [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 22, 1947.
Present: QUA, C.
J., LUMMUS, DOLAN RONAN, & WILKINS, JJ.
Negligence, Motor vehicle, Contributory, Use of way.
Evidence of the circumstances in which a boy, crossing a street after having been required to leave the rear of an ice truck, was struck by an open ventilator projecting five inches beyond the left side of a motor bus approaching from his right, warranted a finding of negligence on the part of the operator of the bus and did not require a ruling that the boy was guilty of contributory negligence.
TWO ACTIONS OF TORT. Writs in the Superior Court dated May 16, 1944. The cases were tried together before Good, J.
H. C. Walsh, for the defendants. J. J. Philbin, for the plaintiff.
The plaintiff's intestate, a boy ten years old, was riding with a companion, on the early afternoon of Labor Day, 1943 on the rear of an ice truck which was travelling in a southerly direction along Lancaster Street in Leominster. When the truck had almost reached the intersection of Florence Street, which joined Lancaster Street on the east the operator discovered their presence, stopped the truck and ordered them to leave. One boy went to the westerly sidewalk but the intestate, while crossing to the easterly side of the street, was struck by an open ventilator projecting five inches beyond the left side of a bus which was proceeding in a northerly direction on Lancaster Street and which was owned by the corporate defendant and operated by the individual defendant. The weather was clear and the road was dry. The accident occurred in a thickly settled district. The jury returned a verdict for the plaintiff on the count for death in each action. The defendants excepted to the denial of their motions for directed verdicts.
There was ample evidence from the operator of the bus and from many parts of the testimony of the witnesses called by the plaintiff which, if believed by the jury, would justify a finding that the intestate darted out from the rear of the ice truck directly into the path of the oncoming bus, which was then so near to him that the accident was inevitable. If this evidence stood alone, the defendants were entitled to prevail. Lynch v. Krancer, 302 Mass. 593 . Abrahams v. Rice, 306 Mass. 24 . Zarrillo v. Murphy, 311 Mass. 493 . Dunsmoor v. Cowdrey, 316 Mass. 516 . Rose v. Silveira, 318 Mass. 709.
In determining the correctness of a ruling denying a motion for a directed verdict for a defendant, in the absence of evidence binding upon the plaintiff and requiring a verdict adverse to him, we need consider only evidence favorable to the plaintiff from whatever witnesses it came, even if it was more favorable to the plaintiff than his own testimony; and there is no error in such a ruling if there can be found anywhere in the entire evidence any set of circumstances that will support a reasonable inference in favor of the plaintiff. Kelly v. Railway Express Agency, Inc. 315 Mass. 301, 302. Champlin v. Jackson, 317 Mass. 461 , 463.
We summarize the facts which the jury could find from the evidence. The intestate left the ice truck when it stopped on the westerly side of Lancaster Street, nearly opposite its intersection with Florence Street, and "sort of jogged or took it easy" as he travelled about twenty or twenty-five feet on his way to the easterly side of the street, and then stopped and looked at the bus, which continued toward him and struck him. The roadbed of Lancaster Street was forty-one...
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