Schnepel v. Kidd , 332 Mass. 137 ( 1954 )

332 Mass. 137 (1954) 123 N.E.2d 385

LAWRENCE S. SCHNEPEL, JUNIOR,
vs.
DAVID W. KIDD.

Supreme Judicial Court of Massachusetts, Middlesex.

October 6, 1954. December 31, 1954.

Present: QUA, C.J., LUMMUS, WILKINS, WILLIAMS, & COUNIHAN, JJ.

Rupert L. Mapplebeck, for the defendant.

Russell J. Coffin, for the plaintiff, submitted a brief.

LUMMUS, J.

This is an action of tort by a schoolboy eight years old to recover for personal injuries sustained on January 24, 1949, in the yard of a school in Wayland. The plaintiff got a verdict. The only exception of the defendant is to the denial of his motion for a directed verdict in his favor.

The defendant was a subcontractor who undertook to do the excavating and grading for an addition to the school, which was being built while the school was in session. More than 300 children attended the school. They played at recess in a gravel yard the dimensions of which were 120 feet by 140 feet. In order for the defendant to get his equipment inside the yard he was obliged to remove two concrete posts which he placed at the foot of a tree about two months before the accident. While playing with other boys at recess, the plaintiff was chasing another boy who "ducked down," with the result that the plaintiff slipped off his back and struck his jaw on one of the posts.

The bill of exceptions does not state that it contains all the evidence relating to the issue of liability. For all that appears there may have been other evidence tending to show negligence on the part of the defendant. McKin v. Siegel, 256 Mass. 269. Gurll v. Massasoit Greyhound Association, Inc. 325 Mass. 76. Irving v. Bonjorno, 327 Mass. 516, 518. Realty Developing Co. Inc. v. Wakefield Ready-Mixed Concrete Co. Inc. 327 Mass. 535, 537. The bill of exceptions does not show contributory negligence of the plaintiff as matter of law.

Exceptions overruled.