will shift the weight of the car suddenly and instead of getting the flat portion of the tire in contact with the pavement it will be on the side. He further testified that with weight on the car you will get such a mark; that the experts should have the differences with weight figured out mathematically; but he did not claim to be an expert or able to give the mathematical formula.
This summary shows that all of the eyewitnesses testified Tom at no time exceeded the speed limit; that two of the three testified that he braked before making his turn at the intersection, and the other did not recall. Although one witness stated Tom grabbed the wheel and pulled to the left and two of the witnesses testified that in their opinion Tom could not have made the turn if he had not stopped, the remaining eyewitness said the turn was a normal left turn, not abrupt or sharp. The latter's testimony was corroborated by the skid marks of the wide, rounded turn across the intersection. All the eyewitnesses agreed that as soon as someone called out that Fred had fallen the driver came to a full stop without completing his turn. The only testimony as to the cause of the high pressure skid marks was that such marks could be caused not only by braking, but by turning suddenly, or by the shifting of the weight of the vehicle on a turn. The position of the skid marks showed the turn was not abrupt. The evidence showed that the car was heavily weighted in its turn. The physical evidence of the skid marks within the intersection and the uncompleted turn are consistent with the testimony of the three eyewitnesses and Tom's statement to the police officer that he came to a full stop upon learning, after he started his turn, that Fred had fallen from the car. There is no evidence as to whether the car was in or out of the intersection at the moment Fred fell.
Without doubt it was negligence for Tom to drive the car with six passengers crowded in the back seat and in the confusion and noise of nine occupants in one sedan. This negligence, however, was not relied upon by the plaintiffs in the pretrial order or at the trial, nor could it be, since Fred, as a trespasser, must be held to have taken the car as he found it, including any continuing negligent condition existing at the time he chose to ride on it.
Upon this whole record I find there is no evidence from which the jury could deduce that defendant's agent was guilty of any active negligence after learning of Fred's presence on the car, and that any such finding would necessarily be based on pure speculation and conjecture.
Fifth, a fortiori, I find as a matter of law that there is no evidence on which a reasonable man could base a finding of intentional, willful, or wanton negligence on the part of the defendant's agent, which could make for liability of the defendant to the plaintiffs if Fred be found to have been a trespasser whose presence was not known prior to the accident.
Not only do I find that plaintiffs have failed to adduce evidence which would permit me to submit the issue of negligence to the jury, but I further find that the plaintiff Fred was negligent as a matter of law, and that there is no evidence upon which the jury could find for the plaintiffs on the doctrine of last clear chance. Fred, a very intelligent boy of seventeen at the time of the accident, testified that he knew then that it was very dangerous to ride on the back of an automobile. Further, plaintiffs' exhibits included photographs of the particular automobile from which Fred fell, a 1952 Nash sedan, showing a generally horizontal rear deck, with somewhat rounded contours and nothing which could be used as a handgrip by a person riding on the back of the car. Inasmuch as I find there is no evidence of exactly when Tom was put on notice that there still was somebody riding outside on the rear deck or that Tom acted negligently after such notice, whenever received, there is no evidence on the issue of last clear chance.
With full realization that 'Only if reasonable men could not reach differing conclusions on the issue may the question be taken from the jury',
the court is constrained to adhere to its granting of the defendant's motion for a directed verdict.