Summary
In Forzley v. Bianchi, the holding was that in the absence of circumstances requiring a finding of justifiable cause for driving the truck on the sidewalk, the plaintiff was entitled to recover.
Summary of this case from Fleming v. HartrickOpinion
October 19, 1921.
October 29, 1921.
Present: RUGG, C. J., CROSBY, PIERCE, CARROLL, JENNEY, JJ.
Negligence, Motor vehicle, In use of highway. Agency, Existence of relation, Scope of employment.
An exception, saved by the defendant in an action for personal injuries received when the plaintiff was run into by a motor truck of the defendant alleged to have been operated by an employee of the defendant, to a refusal of the trial judge to order a verdict for the defendant at the close of the evidence introduced by the plaintiff, must be overruled where the evidence warranted findings that the plaintiff when struck was upon a public sidewalk and that the truck was being used on business of the defendant, was being driven by the defendant's employee while in the performance of his work and was being driven negligently.
TORT for personal injuries received by the plaintiff when she was a traveller upon a sidewalk on Norfolk Street in Worcester on November 1, 1919, and was run into by a motor truck of the defendant alleged to have been driven by her employee. Writ dated November 15, 1919.
In the Superior Court, the action was tried before Bishop, J. Material evidence is described in the opinion. At the close of the plaintiff's evidence, the defendant rested and moved that a verdict be ordered in her favor. The motion was denied. The jury found for the plaintiff in the sum of $5,600; and the defendant alleged exceptions.
The case was submitted on briefs.
E.L Taylor, J.H. Meagher E. Zaeder, for the defendant.
C.E. Tupper, for the plaintiff.
There was evidence reported in this record from which the facts might have been found to be that the plaintiff, while walking on the sidewalk of a travelled way in the exercise of due care, was struck and severely injured by an automobile truck used by the defendant in her business, and being at the time driven negligently by a servant of the defendant while in the performance of his work for the defendant. It is not necessary to state this evidence in detail. There are no circumstances requiring a finding of justifiable cause for the servant of the defendant to drive the truck upon the sidewalk or against the plaintiff under the conditions then existing. No error of law is disclosed on this record. Powers v. Loring, 231 Mass. 458. Burns v. Oliver Whyte Co. Inc. 231 Mass. 519. Rasmussen v. Whipple, 211 Mass. 546. Rogers v. Phillips, 206 Mass. 308. Alpert v. Ellis, 236 Mass. 404. Heywood v. Ogasapian, 224 Mass. 203. Buckley v. Sutton, 231 Mass. 504. Schlehuber v. American Express Co. 230 Mass. 347. D'Addio v. Hinckley Rendering Co. 213 Mass. 465.
Exceptions overruled.