MARY D. IORIO vs. EDWARD C. DONNELLY, JUNIOR, & another, trustees.

RICHARD F. SCANNELL vs. CHARLES M. HILL & another.

343 Mass. 772

November 9, 1961

Exceptions overruled. The defendants, highway construction contractors, concede that a finding of negligence was warranted for failure to maintain lights, barriers or signs to warn travelers on a public highway of a washout around which they had established a detour and into which a bus operated by the plaintiff Scannell plunged on a dark night during a

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heavy rain. The defendants contend that they were entitled to a directed verdict on the ground that Scannell was contributorily negligent as a matter of law. Among other things, it appeared that Scannell was unfamiliar with the road although he had gone over it in the opposite direction the same day under daylight conditions on a trip from Amherst, Massachusetts, to Storrs, Connecticut, and had made a detour around the washout. Without detailing the evidence it is sufficient to say that this is not a case where from "facts which are undisputed or indisputable" or from "evidence by which the plaintiff is bound" the only rational inference is that of contributory negligence. Duggan v. Bay State St. Ry. 230 Mass. 370 , 379. See Duff v. Webster, 315 Mass. 102 , 103, and cases cited. The motion of the defendants for a directed verdict was properly denied.