Lindberg v. Gilbert

190 N.E.2d 105, 346 Mass. 762

• Court: Massachusetts Supreme Judicial Court
• Decided: May 2, 1963
• Status: Published

Opinion

Exceptions overruled. In this action of tort the plaintiff excepted to the direction of a verdict for the defendant. The plaintiff and his son, together with a neighbor and his son, were driving in the plaintiff’s ear. They arrived at Mountain Road in Rowe and after driving on this road for about twenty minutes noticed the defendant’s ear stopped at the foot of a hill. The plaintiff brought his car to a stop about thirty feet behind the defendant’s ear, and the plaintiff and his passengers alighted. The defendant was unable to drive up the hill. The plaintiff gave the defendant a shovel and he dug some gravel, consisting of stones, sand, and dirt, from the banking at the side of the road and threw about six shovelfuls around the rear wheels of his car. He returned to his ear, “spun the wheels violently, and started up very fast.” A stone “thrown back by the rear wheel” struck the plaintiff who was standing about twenty or twenty-five feet to the rear of the defendant’s ear causing injuries to the plaintiff. This was an unusual happening and the defendant was not bound to guard against what was only remotely likely to occur. Sylvester v. Shea, 280 Mass. 508, 510. Lydon v. Warehouse 13, Inc. 335 Mass. 729, 732. Peacock v. Ambassade Realty Corp. 336 Mass. 115,118. There was no error.