Mulligan v. Curtis

100 Mass. 512

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1868
• Status: Published

Opinion

Hoar, J.

We understand from the bill of exceptions, that a verdict was ordered in favor of the defendant at the trial, on the ground that the evidence did not show that due care was exercised at the time of the accident, either by the infant plaintiff or by those who had the legal responsibility for his safety. But upon a careful consideration of the evidence reported, we are of opinion that this was a question for the jury, and that the evidence should have been submitted to them with proper instructions.

The plaintiff was but three and a half years old, and therefore hardly old enough to be trusted in the street by himself without some care or supervision. But he was accompanied by, and was in charge of, an elder brother, a boy of nine years, and, at the time when he was run over, was crossing the street directly before him, and within ten feet of him. He was therefore directly in sight, and almost within reach of the brother; and we cannot say as a matter of law, or rather as a matter of fact so obvious and indisputable that it must necessarily be assumed as the basis of argument, that a boy nine years old is not possessed of sufficient discretion to see and know when a little child might attempt to cross the street with a reasonable prospect of safety. It might depend upon the state of the street, and the travel upon it, upon the width of the street, and the distance of an approaching carriage, whether the attempt would be so perilous as to be careless. Nothing is reported upon these points. If the elder boy was looking out for the younger, and there was reason to think, at the time he allowed him to cross over, that he might get across safely, unless by reason of improper and negligent conduct on the part of others, and he was then injured by the reckless driving or negligence of the defendant, there would seem to be no legal reason why the plaintiff should not receive compensation for the injury. It is undoubtedly true that more care might have prevented the accident. But little children have a right to go into the streets of a city for air and exercise, and, if reasonab e provision is made foi their safety, are under the protection of the law against wrongdoers who disregard their rights. Whether the provision made for the care of the plaintiff was reasonable under the circumstances, and whether reasonable care was taken of him, must be left for a jury to determine. We cannot say judicially that it was not. Exceptions sustained.