Legere v. New England Furniture Co.

As stated in the opinion, it did not appear that when the driver of the truck first appreciated the need of effort on his part to avoid a collision, he also realized that the plaintiffs could themselves do nothing in saving action. One ground of the motion challenges this conclusion. Further consideration of the evidence confirms the conclusion.

The driver's first sight of the plaintiffs showed not much more than their presence, location, and direction of travel. How rapidly they were traveling could not be estimated until some duration of observation. Nor was their inability to swing their sled more to the left than they did indicated at first sight. If the driver saw them in the act of dragging their feet on the snow, some control and lessening of speed would be a natural inference to be drawn. While it may not be found that he did thus see them, the plaintiffs have the burden of proof to show that he did not. That it was apparent to the driver that the plaintiffs could not swing more to the left than they did, is not a reasonable finding. A slightly more acute swing would have avoided the collision which occurred, and it is an unwarranted assumption that the driver realized that the swing was at its extreme degree of acuteness when he first noticed the plaintiffs.

He was aware of a danger in which he was required to act, but he is not shown to have been aware that the plaintiffs could not also act or that they were oblivious to the danger. So far as he observed, it is wholly speculative to find that his observation told him they could do nothing. It is as fair to say that he thought the collision could be avoided only if both he and they acted as to say that he thought he alone could act. Upon the evidence, awareness of the need of action had no tendency to prove awareness that action of the plaintiffs might not also be needed but would or could not be taken.

It cannot properly be found that the driver realized that the plaintiffs could do nothing merely because he realized that he must do something. At best, his state of mind, in thought of saving action by the plaintiffs, is undisclosed.

Conceding that at some indefinite time after he first observed the plaintiffs and at some indefinite point after he applied or began to apply his brakes he realized their self-helpless state, it is only a *Page 428 conjectural conclusion that he then carelessly omitted or delayed saving action.

Since evidence of an element of the last chance rule is thus lacking, the remaining grounds of the motion are unconsidered. They rest upon an unsupported premise.

Former result affirmed.

All concurred.