
    William La Bounty, Administrator, (Estate of William La Bounty) vs. Sebastian Silva et al.
    Maltbie, C. J., Haines, Hinman, Banks and Avert, Js.
    Argued October 9th
    decided December 8th, 1931.
    
      
      Perry J. Hollandersky and Foster K. Sistare, for the appellant (plaintiff).
    
      Ralph 0. Wells, for the appellees (defendants).
   Per Curiam.

The plaintiff’s intestate, a three year old child, was killed by a truck owned by the defendant The J. P. Frisbie Company and operated by the defendant Silva. The jury could reasonably have found the following facts: The deceased and his little sister were coasting down a driveway in a go-cart and the defendants’ truck was proceeding up a slight grade along a state highway through a rural district at a speed of about twenty-five miles an hour. Just as the truck reached the driveway, the children coasted out of the driveway into the highway in the path of the truck. There was an embankment with a hedge on top of it on the side of the driveway from which the truck was approaching rendering it impossible for the driver to see a low object, such as the go-cart with the children in it, coming down the driveway until it was entering the shoulder of the road. As soon as the truck driver saw the children he applied his brakes and did everything possible to avoid the accident. This evidence was practically uncontradicted and the jury could not well have found otherwise than, that the truck driver was not negligent. If, as the plaintiff claims, it is established by uncontradicted evidence that the driver of the truck might have seen children at one point in the driveway, this would not be a basis for holding him negligent, because there was no evidence that the children in question were at this point at any time, much less that they were there at a time when he was at a place in the highway where he could have been expected to look out for any children at that point in the driveway. The motion to set aside the verdict for the defendants was properly denied.

There is no error.  