
    Albert Betancourt, p. a. vs. Augusto Tirrochi
    No. 64011
    February 8, 1927
   RESCRIPT

BLODGETT, J.

Heard on motion for new trial after a verict for the plaintiff for $2087.50.

The testimony shows that the plaintiff, while riding a bicycle on Smith street, was struck by a truck belonging to the defendant and driven by one Harold E. Eldridge, his agent.

The plaintiff, a boy approximately eleven years old, testified that he had borrowed this bicycle from another boy at school; that he was riding between the right hand curb and the car track; that the truck came from behind him, and as he described the accident, “I felt something pull and catch my foot.”

Thomas B. King, a city fireman, and Oscar B. Nelson, testified that the driver of the truck apparently did not know that he had struck the boy until a bystander shouted to him. The defendant, through his driver, claimed that he was driving up Smith street slowly; that as he approached the corner of Smith and Candace streets, he saw several children on the corner; that he saw the plaintiff start away from the corner, going slowly, and that the bicycle was wobbling- a little from side to side; that he watched the boy until he rode right up beside him; that the first he knew of the accident w.as when somebody hailed him from the sidewalk and he then pulled up to the sidewalk. and went back to the scene of the accident. In cross-examination he admitted that there was nothing that would have prevented him from pulling over and giving the boy more room so as to have avoided the possibility of an accident.

For Plaintiff: Littlefield, Otis & Knowles.

For Defendant: Edmund H. McCarthy and Hinckley, Allen, Tilling-hast & Phillips.

The medical evidence shows .that the bones of the second, third and fourth toes were driven downward on the inner side and, in the opinion of the doctor, there is a slight permanent impairment.

Two questions were submitted to the jury; first: whether the driver of the defendant’s truck was negligent in proceeding straight along, as he admitted he did, after having seen this boy, as he says, “wobbling from side to side;” the second: whether the boy was guilty of any contributory negligence.

The jury, after consideration, found that the driver of the truck was negligent and the boy was guilty of no contributory negligence.

The only other question is as to the amount of the verdict and as it was not so great as to shock the conscience of the Court, the Court feels that the verdict of the jury should be sustained.

Defendant’s motion for a new trial denied.  