Home THOMAS J. MCCANN, administrator, vs. M & M TRANSPORTATION COMPANY & another. [Note 1]

351 Mass. 711

February 1, 1967

The plaintiff excepted to directed verdicts for the defendants in this action for the alleged wrongful death of his six year old son who came in contact with a semitrailer truck owned by the corporate defendant. The material evidence most favorable to the plaintiff (Mazzaferro v. Dupuis, 321 Mass. 718, 719) was: The overall length of the unit was forty-five feet; the trailer was thirty-five feet long; the distance from the driver's seat to the forward wheel of the left rear dual wheels of the trailer was thirty feet. Coviello had turned left from Franklin Street, Somerville, into Oliver Street and was proceeding west at five to seven miles an hour. Oliver Street is a thickly settled two way street, twenty-seven feet wide from curb to curb, and has sidewalks three feet wide. The boy's body was found on Oliver Street at a point 126 feet from Franklin Street and 7 1/2 feet from the south curb of Oliver Street. Coviello learned of the accident after he had alighted from his truck in front of his dwelling, 273 feet west of the place of contact. Stains were found on the forward wheel of the left hand rear dual wheels. The only eyewitness to the accident was called by the plaintiff. When he first saw the boy, the boy was running from the gutter toward the middle of the street, "to a spot just ahead of the left rear dual wheels of the trailer" and "he went right under." The stated evidence would not support a finding by inference or otherwise that Coviello had seen or in the exercise of reasonable care should have seen the boy in time to avoid the accident. Luvera v. DeCaro, 317 Mass. 222. Rose v. Silveira, 318 Mass. 709. The evidence did not warrant a finding that the violation of G. L. c. 89, Section 4B, if there was one, bore any causal relation to the alleged wrongful death. Falk v. Finkelman, 268 Mass. 524, 527-528. Kralik v. LeClair, 315 Mass. 323, 328. Deignan v. Lubarsky, 318 Mass. 661, 664. Other exceptions, not having been argued, are deemed waived.

Exceptions overruled.


[Note 1] Patrick A. Coviello, the operator of the vehicle.


351 Mass. 711

February 1, 1967

The declaration in this action of tort alleges that the plaintiff, while a business invitee on the defendant's premises, was hurt as a result of the negligence of the defendant, which failed to maintain elevator doors in a fit and proper condition. There was a verdict for the plaintiff. One of the defendant's exceptions was to the denial of its motion for a directed verdict. The evidence tended to show that the plaintiff was a truck driver in the employ of the American Paper Box Company

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and was delivering materials to the defendant. There was no evidence from which it could be found that the doors, which were on a freight elevator, were defective or that the defendant was negligent in any respect. The plaintiff's testimony, on the other hand, showed that the cause of his injuries was his own attempt without adequate knowledge to operate the elevator. The motion for a directed verdict should have been granted.

Exceptions sustained.

Judgment for the defendant.