316 Mass. 256 | Mass. | 1944
On September 9, 1940, the plaintiff, a child about three years and two months of age, was struck and injured by an automobile driven by the defendant.
The plaintiff’s parents were occupying a summer cottage on Ocean Street in Marshfield. The defendant’s father had allowed the defendant and his wife to occupy over the week-end the adjoining premises owned by the defendant’s father. In the rear of both premises was an unfenced "open space or yard.” There was "no apparent division” of the portions of this space pertaining to the respective cottages. The plaintiff was accustomed to play in the entire space without regard to the property line. The defendant’s father had seen her playing on his part of the "yard” a number of times and had spoken with her but had never objected to her presence. There was no evidence that the defendant himself had ever seen her there before the day of the accident.
On the occasion of the accident the defendant came out of the back door of the cottage occupied by him and saw the plaintiff playing in the open space in the rear of that cottage on land of the defendant’s father. She was near the back of the defendant’s automobile and five or six feet away from its right side. “Without paying further attention to her” the defendant got into the automobile and started it. "As it started” 'he heard the plaintiff scream and stopped the automobile after it had gone about half its length. When he got out the plaintiff was about two feet from the right rear wheel.
■ We have stated all the evidence bearing upon negligence of the defendant. Without pausing to discuss the problems involved in finding that the plaintiff was more than a mere licensee on land of the defendant’s father (see Cohen v. Davies, 305 Mass. 152, 154-155) or in fixing upon the defendant liability to a licensee (see Sarna v. American Bosch
The order of the Appellate Division dismissing the report is reversed, and judgment is to be entered for the defendant.
So ordered.