Ellis v. Ellison (Two Cases‪)‬

CROSBY, J. These are actions of tort. The first is brought by a minor, by his next friend, to recover for personal injuries and for damage to his bicycle resulting from a collision with an automobile owned and driven by the defendant; the other is brought by the father of the minor to recover consequential damages. At the close of the evidence for the plaintiffs the defendant filed a motion in each case for a directed verdict; the motions were granted subject to the plaintiffs' exceptions. The cases are before us on exceptions to the allowance of these motions. There is no substantial difference in the evidence. The only persons who testified to the circumstances respecting the accident were the plaintiff in the first action, who will herein be referred to as the plaintiff, one Hazleton and one Lawrence. Neither of the two last named witnesses saw the collision. The accident occurred in a sparsely settled district in the town of Falmouth on a country road; it was a clear day and the road was dry. The plaintiff was riding a bicycle, following an automobile proceeding in a northerly direction and driven by Hazleton, at a distance of from fifteen to twenty feet. Another automobile was parked on his right-hand side of the road and projected for about two feet into the travelled part of the surfaced highway. The plaintiff testified 'that as he was following the Hazleton car he was going out around the car; that as he started to go out around the parked car he got hit; * * * that he did not see the car that hit him very long before it hit him; that it was about one minute -- second, * * * did not know just how long; that he was twenty feet behind the Hazleton car when he turned out to go by the parked car; that he did not change his course except to follow the Hazleton car; that he did not try at any time to pass the Hazleton car; that the defendant's car was fifteen feet or ten feet away when he first saw it.' The defendant was travelling in an automobile in the opposite direction from that of the plaintiff and was driving on his right-hand side of the road as he approached and passed the Hazleton car; there was no other traffic and there is no evidence which would warrant a finding that he drove his automobile on the left-hand side of the road at any time.