Dealey v. Muller , 149 Mass. 432 ( 1889 )

W. Allen, J.

The plaintiff was run over in the highway by a wagon belonging to the defendants, and driven by their servant. No question was made in regard to the negligence of the defendants’ servant, and the only exception argued is to the refusal of the court to rule that there was no evidence of due care on the part of the plaintiff. This is put upon the ground that the circumstances were not so fully disclosed by the evidence that the jury could properly draw any inference as to the care or negligence of the plaintiff. We think that there was evidence that rendered the question a proper one for the jury.

The plaintiff was a child seven years of age, and of ordinary intelligence, and she testified that she had no recollection of what occurred on the day she was injured. There was evidence that on her return from school, on the afternoon of that day, she was sent by her mother to find her brother, a child of five years. It was not argued that the mother was negligent in this respect. No witness on whom the plaintiff relied testified to seeing her after she left her house, and before the injury, but there was evidence of circumstances proper for the consideration of the jury upon the question of her care. The plaintiff was injured on Beacon Sti’eet in Somerville, north of its crossing with Washington Street. She lived on the southwest corner of the streets, and she was run over in the gutter on the easterly side of Beacon Street, a few feet northerly from Washington Street, and near the northeast corner of the streets. There was evidence from which the jury might have inferred that she found her brother in a yard near where she was injured, and was taking him home at the time of the accident. To reach her house, it was necessary to cross both Beacon Street and Washington Street. Her most direct course would be to leave the sidewalk near where she was injured, and cross diagonally to her house on the opposite corner. The jury took a view of the premises, and heard other evidence concerning the character and condition and use of the streets, and it was for them to say whether the plaintiff exhibited the common prudence of a child seven years old in attempting to cross the street where she did.

The other question is, whether, if she was properly upon the street, the plaintiff used due care to avoid being run over by the defendant’s team. The jury saw the place; — the street, seventy feet wide ; the place in the gutter where the plaintiff was hurt, and its nearness to the sidewalk; the appearance of the surface of the street and gutter; the aspects of the street and objects in the direction from which the danger came; — they heard the evidence of the witnesses, who testified that the horses raced, on the run, across Washington Street, and that they saw the plaintiff when the wheels of the wagon had passed over her, within less than twenty feet of that street. The jury may well have found that there was no evidence of want of due care in the plaintiff, and that the danger was such that the common prudence of children of her age could not be expected to anticipate or avoid, and have inferred from all the circumstances that she was in the use of due care, as they might if she had been run over upon the sidewalk, under circumstances otherwise the same. Undoubtedly the care required of the plaintiff in the street and upon the sidewalk is not the same, but if she was rightfully in the street, the rule of proof of due care is the same.

In the opinion of a majority of the court, the ruling excepted to was correct.

Exceptions overruled.