213 Mass. 110 | Mass. | 1912
The defendant, although asking generally at the close of the evidence that a verdict be ordered in its favor, has waived the question whether there was any proof of its negligence, and contends, as matter of law, that the plaintiff failed to exercise due care. It- appears that with four other children, including his sister, the plaintiff was riding in a wagon moving over the roadway parallel to, and within four to seven feet of, the defendant’s railway, track located at the side of the way. The evidence, while conflicting, would have warranted the jury in finding that as the driver stopped the plaintiff alighted, passed around from the rear to the side next to the track, and stood fronting the wagon helping his sister to alight by the steps between the wheels, when an open car moving in the same direction with the wagon came up and he was struck and injured by the running board. It may be assumed in the defendant’s behalf, and in accordance with the plaintiff’s evidence, that when sitting on the floor at the rear end of the wagon he looked over the track on which the car approached, where his view was unobstructed for a long distance, and in passing from the wagon he again looked, but failed in each instance to observe the car, which the jury could find was plainly visible. It is urged that he stands no better than if he had neglected to look at all, and consequently must be held to have acted carelessly. Fitzgerald v. Boston Elevated Railway, 194 Mass. 242, 243. Willis v. Boston & Northern Street Railway, 202 Mass. 463, 465. Kennedy v. Worcester Consolidated Street Railway, 210 Mass. 132. But, the plaintiff at the time of the accident was not quite twelve years of age, and the degree of prudence required of him cannot be measured by the standard applicable to adults when acting under similar conditions. “It is commonly a question of fact to be determined in each case as it arises, whether considering his age, experience, intelligence, judgment and alertness, the particular child was capable of understanding the nature and extent of the danger in which he was placed. A situation, which might carry plainly to the mind of an adult compre-, hension of danger, might make little or no impression upon a child.” Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 495. See also Dowd v. Tighe, 209 Mass. 464, 467, and cases cited; Callahan v. Dickson, 210 Mass. 510. The gong was not sounded nor any warning given by the motorman, and the exceptions
The defendant undoubtedly was entitled to have the jury instructed as to the rule of law by which they were to be guided in passing upon the question of the plaintiff’s due care. Woodbury v. Sparrell Print, 198 Mass. 1. The entire charge, however, is not reported. It must be presumed in the absence of any statement to the contrary that full and' appropriate instructions were given, and, if so, the portion excepted to went no further than to leave to the jury whether under the circumstances to which
Exceptions overruled.