
    George A. MacDonald vs. Israel Chernick
    No. 88556.
    July 5, 1934.
   POULIOT, J.

Heard on defendant’s motion for_ a new trial after a jury had returned a verdict for the plaintiff.

About 5 o’clock on a very rainy afternoon in December 1931, the plaintiff was walking south on Warwick avenue when he was struck from behind by defendant’s automobile.

All the plaintiff remembers about the accident is that he was walking along the side of the road in line with some poles; that he came to one pole, went around it to his left, shifting a bundle from bis right to his left arm, and was hit.

For plaintiff: Fred J. O’Donnell.

For defendant: O. S. Slocum, F. H. Wildes.

The defendant’s contention is that he was driving along the cement portion of the highway, guiding himself by the white line in the middle of the road as his vision was hampered by a drenching rain, when he saw a shadow come out from the side of the road. A collision took place and he stopped his car “right there.” tie got out of his car, found the plaintiff on the ground, near the right front wheel, with his head in a pool of water, from which he pulled him aside.

On the evidence presented in this case, the plaintiff failed to prove his claim by any preponderance. On the contrary, the only explanation of the accident comes from the defendant, and the defendant’s operation of his car clearly shows no negligence on his part.

To sustain this verdict, you must assume that because the plaintiff was hit from behind there must be some negligence of the defendant involved. There is no evidence of any such negligence.

Defendant’s motion for a new trial is granted.  