Holt v. Cutler

Lathrop, J. If we assume in this case that there was enough evidence of due care on the part of the plaintiff to warrant the submission of the case to the jury, we fail nevertheless to find any evidence of negligence on the part of the defendant’s servant. The servant at the time of the accident was driving a two horse loaded wagon at a walk. The plaintiff, a girl of eighteen, who'was riding a bicycle and going in the same direction as the wagon, attempted to pass on the left between the wagon and the sidewalk, a distance of four or five feet. When she was opposite the middle of the wagon, it swerved or swayed towards her, and she was knocked off her bicycle and sustained the injuries complained of. She testified that she rang her bell; but it does not [25] appear that the driver of the wagon heard it or gave any indication of having heard it, and there was no evidence that he knew of her presence until the accident happened, or had any reason to suppose that she was trying to pass him. There was therefore no evidence of his negligence, even if he turned the horses, a fact that does not clearly appear. Exceptions overruled