Howard v. Holman

89 N.E. 556, 203 Mass. 445, 1909 Mass. LEXIS 952

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1909
• Status: Published

Opinion

Hammond, J.

This is an action to recover for personal injuries alleged to have been received by the plaintiff, then a girl seven years of age, by being run over by a team driven by a servant of the defendant. As is common in such cases, the evidence was conflicting. There is nothing to be gained by rehearsing it or discussing it in detail.

It is not questioned by the defendant that the plaintiff was properly allowed to go upon the street unattended ; and it could not be ruled as matter of law that the evidence did not justify a finding that the plaintiff exercised the degree of care legally required of a child of her age. The question of the negligence of the defendant was clearly also for the jury. The first three requests were properly refused.

The evidence of Richards, the owner of the fee of the private way, that he had given the tenants of the block in which the plaintiff lived the right to use the way as a foot passage to the public street was rightly admitted. It had a tendency to show that at the time of the accident the plaintiff was not a trespasser, but was upon the way in the exercise of a right. The fact that the defendant had no knowledge that the plaintiff had a right to travel there, while it possibly might be taken into consideration upon the question of the negligence of the defendant, did not deprive the plaintiff of her right to be on the way.

It is manifest that in view of this testimony the fourth and fifth requests were properly refused.

The exception to. the refusal to give the sixth ruling requested, while stated as raising one of the questions involved in the case, is nevertheless not argued in the defendant’s brief, and is therefore regarded as waived.

Exceptions overruled.