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Hinckley v. Capital Motor Transportation Co., 72 NE 2d 419 (Mass 1947). A 17 year old bicyclist was either struck from behind by a trailer truck, or the rear end of the truck swerved around and struck him as the truck driver attempted to pass. The truck was traveling at 30 to 35 mph prior to impact and at 25 to 30 mph upon impact. It was a clear day with a dry road, and the truck was "weaving back and forth" prior to striking the cyclist. The boy was found lying unconscious about 10 to 20 feet out into the street and about 70 feet from his damaged bicycle (the way the scenario is laid out in the opinion, it would seem that the boy was thrown 70 feet beyond the trajectory of the bicycle). After the driver struck the plaintiff the truck hit a tree and continued for 700 feet before stopping. Verdicts for personal injuries and property damage returned in favor of the plaintiff bicyclist at trial, and the verdict for consequential damages returned for the defendant (against the plaintiff's father). The defendant and the plaintiff excepted. The defendant's exceptions were overruled, the plaintiff's exceptions were sustained, and the judgment for consequential damages entered in the plaintiff's favor. From the court's opinion: "The defendant excepted to the denial of its motion for a directed verdict and to the submission of a special question to the jury by the judge. These exceptions must be overruled. The principal contention of the defendant in support of its motion for a directed verdict is that the plaintiff was guilty of contributory negligence as a matter of law. If, as the plaintiff testified, he was struck from behind by the defendant's truck, the defendant's contention would require little or no discussion. The issue of the plaintiff's due care would be one of fact for the jury. ... But at the time the case was submitted to the jury the plaintiff had in effect abandoned the contention that he had been struck from behind and conceded that the rear end of the truck swerved around and struck him. If the accident occurred in this manner it is reasonable to infer that the front portion of the truck had either passed beyond or come abreast of the plaintiff at the time the rear end of the truck struck him. But that does not establish that the plaintiff was guilty of contributory negligence as a matter of law. It could have been found that the plaintiff was pursuing a course parallel to that of the truck, and that the accident was due to the swerving of the truck. There was evidence, as noted above, that the plaintiff, when he reached the railroad track, was a considerable distance ahead of the truck. This would warrant a finding that the truck approached the plaintiff from behind and that the plaintiff was not necessarily negligent in not observing its approach in time to avoid being struck. It could not have been ruled on this evidence that the defendant had maintained the burden of proving contributory negligence on the part of the plaintiff. ...
"The defendant's contention that it was not negligent cannot be sustained. It could have been found that the defendant's truck was not proceeding at a reasonable speed as shown by the facts that the trailer was 'weaving from left to right' and that it did not come to a stop for some seven hundred feet after striking the plaintiff. It could have been found and, indeed, was found that the swerving of the trailer contributed to the accident. Moreover, since there was evidence that the truck came from behind the plaintiff, it would warrant a finding that the defendant's driver was negligent either in not seeing him in time to avoid a collision or in not giving him sufficient warning of the approach of the truck." |
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