Eaton v. S. S. Pierce Co.

192 N.E. 831, 288 Mass. 323, 1934 Mass. LEXIS 1267

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1934
• Status: Published

Opinion

Rugg, C.J.

This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff as the result of negligent operation of an automobile owned by the defendant and operated by its agent. The plaintiff at the time of the accident was three years and nine months old, and was unable to testify. The accident occurred in the driveway beside the house where the plaintiff lived with her family. The uncontradicted evidence tended to show these facts: The house is set back from the street about forty-five to fifty feet. A dirt and gravel driveway runs from the street by the side of the house. A wire fence separates the driveway from the lawn of the adjoining premises. The accident happened about half past two on a September afternoon. The plaintiff was playing in the yard of her home as was her custom. She was a quiet, well behaved child, and very intelligent. No one saw the accident, but a witness who had been raking grass on the lawn left the plaintiff playing near the house and along the edge of the driveway; she was making figures in the gravel. A truck of the defendant drove into the driveway to deliver an order of groceries at the house of the plaintiff’s father. The driver testified that he saw a little girl when he drove into the driveway; that after making the delivery he went to the back of the truck to put an empty box into the truck; that at that time there was nobody in the driveway; that he immediately got into his truck and began to back; that he did not blow his horn and did not know he had struck anybody until he heard the screams; that he had not gone more than ten feet when he was conscious of the accident. The truck of the defendant was not covered but was open at the sides, quite high, and had a top on it. The accident happened about twenty-five feet from the sidewalk. The driver of the truck was familiar with the premises. The driver testified that he could tell that before the accident the child did not come from the lawn bordering the driveway nor from the sidewalk, and could not have come from the other side where there was a thick hedge with a wire fence.

The defendant’s only contention is that any attempt to determine how the accident occurred is pure conjecture and speculation. That contention cannot be supported. Manifestly the child was rightfully playing in her own yard. No negligence can be attributed either to her or to her custodian. As was said in Minsk v. Pitaro, 284 Mass. 109, at page 112: “The backing of any vehicle entails more or less limitation on the view by the driver of the area to be traversed and thus requires corresponding vigilance on his part to avoid causing injury to persons who are known to be, or likely to be, there, whether the vehicle is being backed on a public street or on private land.” Numerous cases are cited in support of that proposition. The case at bar is governed by that decision.

Exceptions overruled.