Towle v. Morin

• Decision Date: 30 October 1936
• Citation: 295 Mass. 583,4 N.E.2d 348
• Parties: TOWLE v. MORIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 583

4 N.E.2d 348

TOWLE v. MORIN.

Supreme Judicial Court of Massachusetts, Essex.

October 30, 1936

Action of tort by Clarence Towle, by next friend, for negligence against Leo F. Morin. From an order by the Appellate Division dismissing a report by the trial court, which found for plaintiff in the sum of $3,650, defendant appeals.

Order dismissing report affirmed.

Appeal from Appellate Division of District Court, Northern District Essex County; Pettingell, Judge.

M. S O'Brien, of Lawrence, for appellant.

Hubert C. Thompson and W. O. Cook, both of Boston, for appellee.

CROSBY, Justice.

In that action the plaintiff seeks to recover for personal injuries received by him and alleged to have been caused by a collision with an automobile, owned and operated by the defendant on February 10, 1935.

There was evidence that just before the accident, at about ten minutes after six o'clock in the afternoon, the plaintiff, who was nine years old, was sitting on a sled on the top of a snow bank on the easterly side of Market street in Amesbury, in this commonwealth, with his sled pointing out into the street, which is a public way; that the defendant's automobile came up Market street in a northerly direction, and was operated by the defendant; that it was being driven on the right side of the road; that the street at that time was free from traffic except that an automobile was parked on the westerly side of the street that the speed of the defendant's automobile was between fifteen and twenty miles an hour; that his headlights were lighted; that fifty feet from where the plaintiff was sitting the defendant saw him and two other children who were standing on the snow bank with him; that the defendant sounded his horn; and that the plaintiff heard it, saw the automobile approaching and called out to the other children to look out for the automobile. The testimony of the defendant and the occupants of the automobile was that the defendant was driving four feet away from the snow bank (and the plaintiff, while testifying, indicated with his hands a space of about five to six feet as the distance the automobile was from the bottom of the snow bank); that after sounding his horn the defendant continued on without changing his course or slackening his speed; that the plaintiff, after calling to the other children to ‘ look out for the automobile,’ tried to push his sled back from Market street; that instead of moving back the sled went forward down the snow bank carrying the plaintiff with it, his head striking the right rear wheel of the automobile, which at that time had nearly passed the place where ...