Slattery v. Lawrence Ice Co. , 190 Mass. 79 ( 1906 )

Braley, J.

The plaintiff although a child of tender years had reached an age when she could be allowed to leave her home and go upon the public ways without negligence being conclusively imputed to her father or grandmother with whom she lived. McDermott v. Boston Elevated Railway, 184 Mass. 126, 128, and cases there cited. Young v. Small, 188 Mass. 4.

And the fact that with her companions she was engaged in play does not bar a recovery, however decisive such a circumstance might be in a suit against the municipality for injuries received by a defect in the street. O'Brien v. Hudner, 182 Mass. 381. Tighe v. Lowell, 119 Mass. 472.

Upon conflicting evidence there were two possible conclusions that could have been reached as to her conduct. If the defendant’s witnesses were believed, at the time of her injury she with other children was at the rear of the ice cart where they carelessly remained after being ordered to leave. But this defence evidently was not accepted by the jury to whom the question was properly left, with the specific instruction that if they found this version to be true, the plaintiff was negligent and could not recover.

It often has been said by this court that the standard of care . on the part of an infant plaintiff, if found capable of going on the public ways unattended, depends upon his age and intelligence. Aiken v. Holyoke Street Railway, 180 Mass. 8. McDermott v. Boston Elevated Railway, ubi supra.

Under proper instructions, it was therefore for the jury to determine by this test the character of the plaintiff’s behavior. But upon her statement of the manner in which the accident happened she also could have been found to have exercised the degree of care required of a reasonably careful adult. Wiswell v. Doyle, 160 Mass. 42. McNeil v. Boston Ice Co. 173 Mass. 570.

By either standard to take a seat farther along on the curbstone in obedience to an order of the defendant’s servant, and for the purpose of leaving room for him to pass from the carriage way to the sidewalk was not of itself an act of negligence.

The jury could find, as undoubtedly they did, that there was no apparent reason for her to anticipate that the defendant’s servant would twist the cake of ice he was carrying on his shoulder so that it would fall and finally come in contact with her person, and for this reason the second, third and fourth rulings requested were rightly refused.

While the combination of circumstances which caused him to stumble, and the cake of ice to fall on the ground, when it rebounded striking her, are unusual and peculiar, they cannot be said as matter of law to be so extraordinary as not reasonably to have been foreseen, and hence should have been guarded against by those in charge of the defendant’s business. Powell v. Deveney, 3 Cush. 300. Manning v. West End Street Railway, 166 Mass. 230, 231. Flynn v. Butler, 189 Mass. 377. The first ruling consequently could not have been properly given.

Exceptions overruled.