Davicki v. Flanagan , 250 Mass. 379 ( 1924 )

Crosby, J.

The plaintiff, a boy nine years of age, was on his way from a school on Rockland Street, in Fall River, to a bakery on South Main Street, to get his dinner. He testified that there were more than fifty school children at the time all going to the bakery for the same purpose, some of them running and some walking; that about thirty of them were ahead of him and more behind him; that all were crossing the street; that as he was walking across, and was about in the middle of, South Main Street he was struck by the automobile, knocked down and run over; and that as a result of the accident his leg was broken, his lips cut, and he received other injuries. He also testified that he did not see the automobile until just before he was struck; that it was “going fast”; that he saw other boys crossing the street so he went too. Another witness testified that he was about six feet behind the plaintiff at the time of the accident; that when he (the witness) stepped off the sidewalk he saw the automobile about a block away; that he heard no horn; that the macMne was going fast; that the left front mudguard Mt the boy on the chest and knocked him over; and that the macMne came to a stop about fifty feet beyond the place of the collision.

Although the plaintiff testified that he did not look in the direction from wMch the automobile came and did not see it until just before he was struck, that testimony is not decisive upon the question of his due care. If, as the jury could have found, the defendant was travelling at a high rate of speed without giving any signal of his approach, and the plaintiff was following other children across the street, it could not be ruled that the plaintiff was negligent. He had a right to rely to a certain extent upon the belief that operators of automobiles would exercise a proper degree of care. Hennessey v. Taylor, 189 Mass. 583. Besides, the circumstance that he was following a large number of other children across the street was material as bearing upon his conduct. On the evidence most favorable to him the jury were warranted in finding that at the time of the injury he was in the exercise of such care as might reasonably be expected of children of that age under similar conditions. McDermott v. Boston Elevated Railway, 184 Mass. 126. Burns v. Worcester Consolidated Street Railway, 193 Mass. 63. Beale v. Old Colony Street Railway, 196 Mass. 119. Tripp v. Taft, 219 Mass. 81. Prendergast v. Boston Elevated Railway, 232 Mass. 409. Inangelo v. Petterson, 236 Mass. 439.

The question of negligence of the defendant has not been argued by him; it is obvious that it could not properly have been ruled that there was no evidence of such negligence. If, as the jury were justified in finding, the defendant came to the place in the street where the plaintiff and a large number of other children were crossing, operating his automobile at a high rate of speed and without sounding his horn or giving any other warning of his approach, a finding of negligence was amply warranted. Tripp v. Taft, supra. Patrick v. Deziel, 223 Mass. 505.

As the defendant’s request for a ruling that the plaintiff was not entitled to recover could not rightly have been given, the entry must be

Exceptions overruled.