Leonard v. Fowls

Wait, J. The defendant contends that there was error in the refusal by the trial judge to direct a verdict in his favor. There was evidence that, while driving at a rate of twenty miles per hour along a highway where for a distance of a quarter of a mile the houses were less than two hundred feet apart (G. L. c. 90, §§ 1,17), he saw, three hundred and thirty-seven feet away, three boys standing in the street beside a truck. He sounded his horn and they looked at him. He came up to the truck without change of speed or direction and with the left forward end of the automobile struck the plaintiff’s intestate as he was running along or across the way. Here is enough for a jury to find that he was careless in giving no further warning, maintaining his speed, and making no change in his course, in view of the probable conduct of small boys seen in the road ahead of him; and, since the boy saw him over three hundred feet away, it would justify a finding that the boy miscalculated the speed and was not careless [533] in starting to cross, relying in part on the defendant to govern his speed and direction so as not to strike him, or to give further warning if it was dangerous for him to proceed. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232. It is true that there was evidence that the boy had not seen the coming automobile and started away without looking; that another of the boys warned him, tried to stop him, and in fact did prevent a younger brother from following the intestate into an inevitable collision with the defendant’s car; and that the only witness, other than the defendant, who saw the accident testified that the intestate darted in front of the car. A verdict for the defendant might well have been expected from the evidence as it appears in print before us; but so long as there was testimony which, if believed, would justify a different result, the presiding judge could not rightly grant the defendant’s motion for a directed verdict. There was no error in the ruling. Exceptions overruled.