Ingraham v. Boston & Norther Street Railway Co. , 207 Mass. 451 ( 1911 )

Loring, J.

1. So far as due care on the part of the child’s mother goes these cases come within Hewitt v. Taunton Street Railway, 167 Mass. 483, and not within the later case of Cotter v. Lynn & Boston Railroad, 180 Mass. 145. The age of the child in Hewitt v. Taunton Street Railway was the same as that of the child in these cases. The yard in question in that case had a fence “ with gates opening ” on one of the main thoroughfares in the city of Taunton, while in these cases the yard had no fence on the side next to Salem Street, but Salem Street was “ like the ordinary village street, not thicky settled.” There both parents were in the house and one of them had looked at the child in the yard fifteen minutes before the accident, while in these cases the mother looked at the child in the yard not more than ten minutes before the accident happened. In addition there were facts here which help the plaintiff that did not exist there. The child in these cases was playing with another somewhat older child and had been “ always ” instructed by her mother not to leave the yard, an instruction which had been repeated on the morning of the accident and one which up to that time never had been disobeyed. The principal difference between these cases and Cotter v. Lynn & Boston Railroad lies in the fact that in that case, an hour to an hour and a half (in place of ten minutes) had elapsed between the time when the mother last looked to see if the child was still in the yard and the time of the accident; and there are some minor differences in addition between the two cases. There was therefore evidence of due care on the part of the child’s mother.

2. If the jury believed (1) the motorman’s story as to what he did after he first saw the child one hundred and fifty to two hundred feet away, (2) his testimony that such a car as the car here in question under like conditions could be stopped in twenty-five feet, and (3) the testimony of Cornell and Legrow that there were no leaves on the rails, the only explanation of the car not having come to a stop before it ran over the child was that the brakes or the machinery to start the reverse or both were out of order. The inotorman’s story was that the car was going four miles an hour when he first saw the child one hundred and fifty to two hundred feet away; that he immediately began to put on his brakes and “ the reverse ” alternately and kept doing so, but that the car kept going four miles an hour until it ran over the child. There was therefore evidence of negligence on the part of the corporation.

3. But the jury were not bound to believe the motorman’s story that he put on the brake and the machinery to put on the “ reverse” continuously after he discovered the child one hundred and fifty to two hundred feet away. Hankinson v. Lynn Gas & Electric Co. 175 Mass. 271. If they did not believe that part of his story and did believe (1) his testimony that the brake and the machinery to put on the reverse were in good order, (2) his testimony that the car in question, under the conditions which then obtained, could be stopped in twenty-five feet; (3) the testimony of Cornell and Legrow that there were no leaves on the rails; and (4) that the child (who was a very young one and so incapable of taking care of herself) was walking with her back toward the car, they were warranted in finding that he was guilty of gross negligence, if indeed any other conclusion is possible.

In all but two of the cases cited by the defendant in which it was held that there was no evidence of gross negligence (Brennan v. Standard Oil Co. 187 Mass. 376, Manning v. Conway, 192 Mass. 122, Dimauro v. Linwood Street Railway, 200 Mass. 147) the accident happened by the person killed unexpectedly putting himself in the place of danger. There is nothing in the other two (Pearlstein v. New York, New Haven, & Hartford Railroad, 192 Mass. 20, Lanci v. Boston Elevated Railway, 197 Mass. 32) which helps the defendant. There was therefore evidence of gross negligence on the part of the defendant’s servants.

The entry must be

Exceptions overruled.