
    Michele Maio vs. Julia V. Rooney et al.
    Maltbie, C. J., Hinman, Avert, Brown and Jennings, Js.
    Argued October 13th
    decided November 3d, 1934.
    
      Walter F. Foley, for the appellant (plaintiff).
    
      Ralph O. Wells, for the appellees (defendants).
   Per Curiam.

One of the defendants was operating an automobile owned by the other defendant along a street in Windsor, when the car came to a place where a sewer was under construction. A timber ten to twelve feet long was being used to determine certain grades and blocked the road. The defendant driver stopped the car. The workmen moved the timber back but continued to hold it. The end then extended toward the street somewhat beyond the workmen nearest the roadway and was thirty-four inches from the ground. One of the workmen signaled the driver to proceed and believing that the timber had been moved out of the way to allow her to pass, she drove forward at a very slow speed. There was room for her to pass without striking the timber. Her right fender came in contact with the end of it, throwing down the plaintiff, one of the workmen holding it, and causing the injuries, to recover for which he brought this action. He has appealed from a judgment for the defendants on the ground that the driver was negligent as matter of law. There might be weight to his argument if it appeared that the driver saw or ought reasonably to have seen that the end of the timber extended beyond the workmen holding it into the roadway. But this is not found and we cannot assume it to be so. Lacking that element there is no basis for holding the driver negligent as matter of law.

There is no error.  