Sullivan v. Boston Elevated Railway Co.

78 N.E. 382, 192 Mass. 37, 1906 Mass. LEXIS 898

• Court: Massachusetts Supreme Judicial Court
• Decided: May 17, 1906
• Status: Published

Opinion

Loring, J.

1. The defendant’s contention in support of its second request for a ruling is that in a case where the minor child who is injured (after getting on the street in question without negligence on the part of his parents) has not exercised any care, the burden is on the plaintiff to prove that he was incapable of exercising any care; and that in the case at bar these plaintiffs did not sustain the burden of proving that fact; that in the case at bar that fact was left to conjecture and was not proved.

There doubtless is an age where the court can say as matter of law that a child cannot exercise any care under any circumstances. There also is an age where the court can say as matter of law that a minor is capable of exercising some care under circumstances like those in question. See in this connection Collins v. South Boston Railroad, 142 Mass. 301, 314. The limits of these two classes are not settled by our decisions. There are now and probably always will be cases where it fairly may be said (as it was said in the case at bar) that the child did not under the circumstances exercise any care, and yet it cannot be said as matter of law that an ordinarily prudent child of the age or having the capacity of the child in question (whichever is the correct statement) was capable or incapable of exercising care. Such eases must be left to the jury. In such cases the matter is not a matter of conjecture, and yet nothing more can be proved than was proved in the case at bar. In the case at bar it was proved that the plaintiff in question was “ a lively child, active and energetic,” four years and three months old. The circumstances calling for the exercise of care on his part were these: The accident happened on one of the main thoroughfares of Boston, on which the defendant had a double track, surface railway, (and if the plaintiff’s evidence was to be believed) a car was running from fifteen to twenty miles an hour. This boy, while crossing this thoroughfare, walked at a “pretty lively ” gait, or trotted “ at a fair little jog ” into the forward fender of the defendant’s car. At the time he was behind 'another boy, who was slightly older. This made out a case for the jury. See in this connection Wright v. Malden & Melrose Railroad, 4 Allen, 283; Munn v. Reed, 4 Allen, 431; Callahan v. Bean, 9 Allen, 401; Lynch v. Smith, 104 Mass. 52; Gibbons v. Williams, 135 Mass. 333; O’Connor v. Boston & Lowell Railroad, 135 Mass. 352; McGeary v. Eastern Railroad, 135 Mass. 363 ; Marsland v. Murray, 148 Mass. 91; Slattery v. O’ Connell, 153 Mass. 94; Creed v. Kendall, 156 Mass. 291; Grant v. Fitchburg, 160 Mass. 16 ; Powers v. Quincy & Boston Street Railway, 163 Mass. 5 ; Hewitt v. Taunton Street Railway, 167 Mass. 483 ; McNeil v. Boston Ice Co. 173 Mass. 570; Butler v. New York, New Haven, & Hartford Railroad, 177 Mass. 191; Walsh v. Loorem, 180 Mass. 18; Cotter v. Lynn & Boston Railroad, 180 Mass. 145.

2. We are also of opinion that the question of the parents’; negligence was for the jury.

The difficulty with the argument of the defendant’s counsel here is that he has not told us what more (in his opinion) the parents were as matter of law called upon to do. Since the day

was a rainy one, we cannot say as matter of law that it was not proper to keep the minor plaintiff in the house. Under the circumstances the lower hall cannot be said to be an improper place for the boys to play in although the front door was not locked. The front door was the common door of all three apartments and so not within the control of the boy’s parents. Neither can we say that the mother ought to have left her washing to stand over the boys while playing, and the same is true as to the father, who was to go to work after supper and who was spending what was his night looking after the sick baby two and a half years of age. It is to be noted that on the uncontradicted testimony the boy “ was always a good boy to mind,” and was cautioned by both father and mother not to leave the entry; and also that within two minutes after the noise of their play ceased the father started to look for the boys, on being asked to do so by the mother who had kept herself where she could hear, and where, by going ten or twelve feet to the rail, she could look down and see them while they played in the entry. McGeary v. Eastern Railroad, 185 Mass. 363. Marsland v. Murray, 148 Mass. 91. Slattery v. O' Connell, 153 Mass. 94. Creed v. Kendall, 156 Mass. 291. Powers v. Quincy & Boston Street Railway, 163 Mass. 5. Hewitt v. Taunton Street Railway, 167 Mass. 483. McNeil v. Boston Ice Co. 173 Mass. 570. Butler v. New York, New Haven, Hartford Railroad, 177 Mass. 191. Walsh v. Loorem, 180 Mass. 18. Cotter v. Lynn & Boston Railroad, 180 Mass. 145. O'Brien v. Hudner, 182 Mass. 381. Mellen v. Old Colony Street Railway, 184 Mass. 399.

Exceptions overruled.