Young v. Small , 188 Mass. 4 ( 1905 )

Braley, J.

The plaintiff, a girl nine years of age, was returning from school with a companion, and they with other children were .engaged in playing in the street, through which at the same time the defendants’ team was passing in charge of their servant.

Her testimony showed that she was not giving any attention to the use of the street by others, being entirely absorbed in play, when without looking to see if there were passing teams, or if it was free from obstructions, she deliberately ran across the street, and was struck by the horse and knocked down.

It may be conceded that she had reached an age of sufficient maturity to be allowed to use the public ways to go to and from school without negligence being imputed to her parents, yet she was required to exercise such a degree of care as reasonably was to be expected of a child of her years. McDermott v. Boston Elevated Railway, 184 Mass. 126, 128.

But if the plaintiff was lawfully upon the highway, yet her heedlessness in crossing a public street although under momentary excitement, without the least regard to its use at the time by other travellers, exhibits a spirit of carelessness, and a willingness to take chances that prevents her recovery, for it is apparent that if she had looked, the team easily could have been avoided. Such conduct, judged by the ordinary standard of care shown by children of her age, must be deemed to have been negligent, and precludes her recovery. Messenger v. Dennie, 137 Mass. 197. Mullen v. Springfield Street Railway, 164 Mass. 450. Morey v. Gloucester Street Railway, 171 Mass. 164. Sewell v. New York, New Haven, & Hartford Railroad, 171 Mass. 302. Murphy v. Boston Elevated Railway, post, 8.

Ho consideration of the due care of the defendants’ servant is required, as this negligence on her part is sufficient to sustain the ruling under which a verdict was ordered for the defendants.

Exceptions overruled.