Gallagher v. O'Riorden

94 N.E. 264, 208 Mass. 275, 1911 Mass. LEXIS 807

Opinion

Braley, J.

The first action is to recover for personal injuries suffered by the plaintiff, an infant five years of age, who while alighting was thrown from a “ caravan team ” in charge of the defendant’s servant, and the second action is brought by the father to recover for loss of his son’s services. In each case the amended declaration alleged wanton, reckless and gross negligence on the part of the driver, and, a verdict having been ordered for the defendants at the close of the plaintiffs’ evidence, the cases are before us on a report,* with a stipulation, that if the ruling was right judgment for the defendants is to be entered on the verdicts, but if wrong, each plaintiff is to have judgment for a stipulated amount. Ho question of the weight of the evidence is presented, and if there was any testimony to sustain the allegations, the plaintiffs must prevail.

To begin with, it is conceded that the boy was a trespasser, and the driver, having discovered his presence, stopped the team and ordered him with other boys who were “ standing on the team ” to get off. The jury could have found that, having given this order, he could not act so recklessly or wantonly as to endanger the plaintiff’s safety while it was being obeyed. But under the most liberal interpretation, the evidence * wholly fails to show that while the plaintiff was alighting the sudden starting of the team which caused his fall and injury was attributable to any intentional purpose of the driver to proceed regardless of the plaintiff’s position or of the likelihood that he might be shaken off and fall under the wheel. If the plaintiff had been on the caravan at the driver’s express invitation or was riding with his consent, a different question would be presented. Knowledge however that the plaintiff was there, that he had been ordered to depart, while the team which had been stopped again went on without the driver having first ascertained if the plaintiff had alighted, are as matter of law under our decisions insufficient to show such wilful misconduct as to support the action. Bjornquist v. Boston & Albany Railroad, 185 Mass. 130. Anternoitz v. New York, New Haven, & Hartford Railroad, 193 Mass. 542. West v. Poor, 196 Mass. 183. Barry v. Stevens, 206 Mass. 78. Black v. Boston Elevated Railway, 206 Mass. 80. Menut v. Boston f Maine Railroad, 207 Mass. 12,19.

D. H. Coakley, R, H. Sherman & W. Flaherty, for the plaintiffs, submitted a brief. W. H. Hitchcock, ( C. M. Pratt with him,), for the defendant.

The entry in each case therefore must be. judgment for the defendant.

So ordered.

Footnotes

*

By Dana, J., before whom the cases were tried.

*

There was evidence tending to show that the minor plaintiff was on one of the rear wheels of the caravan in the act of alighting and that the driver, holding the reins in his hands, was looking at the boy and not at the horses, when the caravan started and ran over the boy.