EUSEBIO DASILVIA vs. WILLIAM DALTON (and a companion case ).

EUSEBIO DASILVIA vs. WILLIAM DALTON (and a companion case [Note 1]).

322 Mass. 102

October 27, 1947 - December 3, 1947

Bristol County

Present: QUA, C.J., LUMMUS, RONAN, SPALDING, & WILLIAMS, JJ.

Evidence, that the operator of a motor truck started it and turned it to the right, striking and injuring one who had been assisting him by sanding the driving surface of the way and who he knew or should have known had passed around in front of the truck and was at its right side between it and a snow bank a few feet away, warranted a finding of negligence on the part of the operator and did not require a ruling of contributory negligence on the part of the one so injured.

TWO ACTIONS OF TORT. Writs in the Third District Court of Bristol dated August 28, 1941.

On removal to the Superior Court, the cases were tried before Goldberg, J.

W. J. Fenton, for the defendants.

G. W. Walsh, for the plaintiff.

WILLIAMS, J. These are two actions of tort against the operator of a motor truck and his employer for personal injuries received in an accident in New Bedford on February 16, 1940. No question of agency is involved. Dalton, the operator, was driving a "straight job," not a trailer, about twenty-two feet long and eight and one half feet wide overall, with a box body. The truck had been driven to the Naushon Mill and was backed up against the loading platform. A heavy fall of snow had been cleared for a space of twelve feet in width to enable trucks to reach this platform. It was about five o'clock in the afternoon, the truck had been loaded, and Dalton was in his seat on the left of the truck. He attempted to start and the rear wheels spun around on the icy surface of the mill yard. The plaintiff was employed

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at the mill and was ordered by his foreman to assist Dalton to get traction by throwing sand and sawdust under the rear wheels. Having done this, the plaintiff started for the supply room with a partly emptied pail of sand and sawdust. He went from the left side of the truck around in front and as he passed he saw the driver in his seat ready to start, although the engine was not then running. It started to run "just about when he crossed in front." He continued along the right side of the truck toward the supply room. He was beyond the driver's vision near the middle of the right side of the truck and between it and a snow bank when the truck started up, striking him and causing him to slide under the rear wheels. As it started the truck turned to the right to go around the corner of the mill building. The jury would have been warranted in finding the facts to be as above stated. They returned a verdict in each case for the plaintiff. The defendants have excepted to the denial of motions for directed verdicts in their favor.

The jury could have found Dalton negligent in starting his truck and turning to the right when he knew or should have known the position in which the plaintiff was then placed. Buckman v. McCarthy Freight System, Inc. 320 Mass. 551 . Reed v. Union Street Railway, 320 Mass. 706 . Campbell v. Cairns, 302 Mass. 584 .

The plaintiff was not guilty of contributory negligence as matter of law, although he knew that the operator intended to start and that normally the truck would turn to the right. He had a right to expect that the operator would exercise a reasonable degree of care for his (the plaintiff's) safety. Snow v. Boston Elevated Railway, 303 Mass. 420 . This is not a case where the only permissible conclusion is that the plaintiff suddenly stepped from a place of safety to a place of danger in front of a moving vehicle. Hughes v. Iandoli, 278 Mass. 530 . Nicholson v. Babb, 304 Mass. 216 .

Other exceptions of the defendants to the denial of motions for continuance before trial and the denial of motions for new trials have not been argued.

Exceptions overruled.

FOOTNOTES

[Note 1] The companion case is by the same plaintiff against Hemingway Brothers Interstate Trucking Company.