Opinion
January 28, 1959.
James W. Kirk, for the plaintiff.
Thomas D. O'Brien, III, for the defendant.
Exceptions overruled. This is an action of tort by a fifteen year old student, who was a drummer in a high school band, against the defendant corporation, which was in control of the Boston Garden. The declaration alleges that, while attending a school basketball tournament, he was "assaulted and beaten" by reason of the defendant's negligence. His testimony showed that as he was climbing a stairway, one of a gang of older boys rendered him unconscious by blows of the fist on his head. There was no error in the direction of a verdict for the defendant. The evidence falls short of showing incidents on the night of the assault or on the earlier nights of the tournament sufficient to charge the defendant with failure to anticipate a dangerous condition and so to constitute a breach of the duty of care which it owed the plaintiff. Rich v. Boston Elev. Ry. 316 Mass. 615. Waugh v. Great Atl. Pac. Tea Co. 317 Mass. 230. In McFadden v. Bancroft Hotel Corp. 313 Mass. 56, Fortier v. Hibernian Bldg. Assn. of Boston Highlands, 315 Mass. 446, Rawson v. Massachusetts Operating Co. Inc. 328 Mass. 558, and Quigley v. Wilson Line of Mass. Inc., ante, 125, the plaintiff's evidence was much stronger.