Bliss v. Inhabitants of South Hadley

13 N.E. 352, 145 Mass. 91, 1887 Mass. LEXIS 15

Opinion

Morton, C. J.

It cannot be said, as matter of law, that it was negligence on the part of the parents of the intestate to send him into the street for air and exercise in the charge of his brother Leon, who was eight years old. It was a question of fact, depending upon how much the street was used, and upon the intelligence, capacity, and experience of Leon, and was properly submitted to the jury. The evidence does not disclose any decisive act of negligence on the part of Leon, and it was for the jury to determine whether he was exercising reasonable diligence in the care of his infant brother.

It was competent for the jury to find that the boys were travellers. They were using the street for air and exercise. The fact that they stopped for a few minutes to watch other boys at play was one of the natural and ordinary incidents of travel, and did not divest them of their rights as travellers. Gulline v. Lowell, 144 Mass. 491.

Exceptions overruled.