Powers v. Quincy & Boston Street Railway Co.

39 N.E. 345, 163 Mass. 5, 1895 Mass. LEXIS 20

• Court: Massachusetts Supreme Judicial Court
• Decided: January 4, 1895
• Status: Published

Opinion

Knowlton, J.

The only question argued by the defendant is whether there was evidence to submit to the jury in favor of the plaintiff on the question whether his intestate was in the exercise of due care. He was a child two years and eight months old. He lived with his parents and four sisters, the eldest of whom was fifteen years of age, in a house on Franklin Place in Quincy, about two hundred feet westerly from the line of Franklin Street. He was run over and killed by one of the defendant’s electric cars on Franklin Street soon after one o’clock in the afternoon. There was evidence of negligence on the part of the motorman in charge of the car. The child was too young to be capable of taking care of himself on a public street. He was in the custody of his mother before he escaped and went upon the street, and the burden was on the plaintiff to show that she was in the exercise of due care in reference to his safety.

The evidence tended to show that the plaintiff was a laborer, and that his wife, the boy’s mother, took charge of the house and did the household work for the family. On the day of the accident she was busy providing dinner for her daughters, who had come home from school, and for her husband, who came from his work and had his dinner a little later than the others. There was a yard outside of the house enclosed by a fence, with a gate opening from it into Franklin Place. On the gate was a catch to fasten it, and also a rope sometimes used for the same purpose. The children were instructed to fasten the gate whenever they passed in or out. The plaintiff’s intestate had been playing in the enclosed yard in the forenoon of the day of his death. His sister Margaret, then seven years and four months old, went out of the house after dinner into the yard on her way to school. She had been instructed to close the gate whenever she opened it, and once had been punished by her mother for leaving it open. The mother saw the little boy follow his sister Margaret out of the house into the yard. Margaret left the gate open as she started for school, and the boy followed her, and went into Franklin Street and was run over. It was testified that the mother heard of the accident ten or fifteen minutes after she saw the boy go out of the house.

We are of opinion that it was a question of fact for the jury whether the mother was reasonably careful in allowing the boy to go out into the yard alone, and in not watching him after he went out. The jury might find that she had good reason to believe that he was safe in the yard and that he could not escape. They might well find that the care she -gave him was all that could reasonably be required of her under the circumstances. The nature of the evidence was such as to present a question of fact, and not a question of law. Mulligan v. Curtis, 100 Mass. 512. Gibbons v. Williams, 135 Mass. 333. O'Connor v. Boston & Lowell Railroad, 135 Mass. 352. McGeary v. Eastern Railroad, 135 Mass. 363. Slattery v. O'Connell, 153 Mass. 94, 96. Creed v. Kendall, 156 Mass. 291. Marsland v. Murray, 148 Mass. 91. Exceptions overruled.