Davidonis v. Levielle

248 N.E.2d 645, 356 Mass. 716

• Court: Massachusetts Supreme Judicial Court
• Decided: May 29, 1969
• Status: Published

Opinion

In this action of tort for negligence the judge, subject to exception, following a verdict for the plaintiff ordered that a verdict be entered for the defendant under leave reserved. G. L. c. 231, § 120. The evidence must be viewed most favorably to the plaintiff. The judge will be upheld only if on the pleadings the evidence (a) did not warrant a finding that the defendant was negligent, or (b) required a finding that the plaintiff was contributorily negligent. About 7 p.m. October 16, 1963, the plaintiff took his truck to the defendant’s garage to have the brake adjusted and, after having a few drinks at a nearby bar, returned and saw his truck on a lift six feet above the ground. At the mechanic’s suggestion he climbed a six foot stepladder next to the driver's door side of the cab, tightened, as directed, the brake three or four times, and was told “O.K., .... You can come down.” The plaintiff got up, turned around, facing the opposite door, backed out of the truck to come down the ladder, and fell to the ground He testified: “I didn’t see the ladder. I didn’t see anything. ... 1 took it for granted.” There was no evidence that the ladder was negligently placed, that it was moved before or while the plaintiff “backed out of the truck,” or that it moved at all until the plaintiff fell to the ground. There was no showing that the defendant was negligent. The only rational explanation of the accident was the plaintiff’s testimony, by which he is bound, that he did not look to see where the ladder was. Hultberg v. Truex, 344 Mass. 414, 419, and cases cited. There was no error.

Exceptions overruled.