Opinion
April 1, 1957.
Charles J. Wilkins, for the plaintiff.
Edward R. Langenbach, for the defendant.
Verdict entered under leave reserved to stand. Shortly after five o'clock on the wet and rainy afternoon of November 24, 1954, the plaintiff's intestate, referred to as a child or boy but whose age does not appear, was struck and killed by an automobile on Tremont Street in Boston, a public street approximately seventy feet wide. The defendant had driven his truck about fifteen miles an hour down Tremont Street at about the time and place of the accident but from the beginning had denied that he was involved in the accident. A chemist, who as a member of the Boston police department, examined the bumper of the truck and testified there was a "brush mark" on the right side of the bumper that could have been made by cloth of the same material as the clothing which the intestate wore. No part of the intestate's clothing was produced. The medical examiner who examined the body testified that two abrasions on the left forearm could have been made by the front right tire but those marks were two inches apart and they should be only one inch apart if made by the tire. There was testimony of one Mooers, a pedestrian, that he heard a woman shout "Catch that truck," that he got into an automobile and caught up to the defendant's truck, and that one of the occupants of the automobile got out and told the defendant he had struck a boy on Tremont Street. Thereupon the defendant turned around and saw the intestate lying in the street. Mooers did not see the accident and the woman who shouted to him did not appear as a witness. There was no error in entering a verdict for the defendant. If we assume that the death of the intestate was caused by the truck operated by the defendant, see Atlas v. Silsbury-Gamble Motors Co. 278 Mass. 279; Cochrane v. Great Atlantic Pacific Tea Co. 281 Mass. 386; Smith v. Rapid Transit Inc. 317 Mass. 469, the evidence was insufficient to show it was due to the negligence of the defendant. Jabbour v. Central Construction Co. 238 Mass. 453. Nager v. Reid, 240 Mass. 211. Rizzittelli v. Vestine, 246 Mass. 391. Whalen v. Mutrie, 247 Mass. 316. McGrimley v. Jameson, 297 Mass. 280. Luvera v. DeCaro, 317 Mass. 222. Cleary v. St. George, 335 Mass. 245.