HOLT v. CUTLER, 185 Mass. 24 (1904)

69 N.E. 833

AGNES HOLT vs. NATHANIEL E. CUTLER.

Supreme Judicial Court of Massachusetts. Middlesex.November 17, 1903.
January 8, 1904.

Present: KNOWLTON, C.J., MORTON, LATHROP, BARKER, BRALEY, JJ.

Negligence, In driving.
In an action for personal injuries alleged to have been caused by the negligence of a driver of a team of the defendant, it appeared, that the defendant’s servant was driving two horses in a loaded wagon at a walk, when the plaintiff, a girl of eighteen going in the same direction on a bicycle, attempted to pass on the left between the wagon and the sidewalk, where there was a space of four or five feet, and that when the plaintiff was opposite the middle of the wagon it swerved toward her and knocked her off the bicycle, causing the injuries. She testified that she rang her bell, but it did not appear that the driver heard it, and there was no evidence that the driver knew of the plaintiff’s presence until the accident happened or had any reason to suppose that she was trying to pass him. Held, that there was no evidence of negligence on the part of the defendant’s servant.

TORT for personal injuries alleged to have been received from being run over by a team negligently driven by a servant of the defendant. Writ dated October 10, 1900.

At the trial in the Superior Court Lawton, J. at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions.

J.J. O’Connor, for the plaintiff.

S.K. Hamilton, (T. Eaton with him,) for the defendant.

LATHROP, J.

If we assume in this case that there was enough evidence of due care on the part of the plaintiff to warrant the submission of the case to the jury, we fail nevertheless to find any evidence of negligence on the part of the defendant’s servant.

The servant at the time of the accident was driving a two horse loaded wagon at a walk. The plaintiff, a girl of eighteen, who was riding a bicycle and going in the same direction as the wagon, attempted to pass on the left between the wagon and the sidewalk, a distance of four or five feet. When she was opposite the middle of the wagon, it swerved or swayed towards her, and she was knocked off her bicycle and sustained the injuries complained of. She testified that she rang her bell; but it does not

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appear that the driver of the wagon heard it or gave any indication of having heard it, and there was no evidence that he knew of her presence until the accident happened, or had any reason to suppose that she was trying to pass him. There was therefore no evidence of his negligence, even if he turned the horses, a fact that does not clearly appear.

Exceptions overruled