217 Mass. 179 | Mass. | 1914
This is an action of tort to recover damages for the death of a boy eleven years old which occurred on the Revere Beach Boulevard, from collision with an automobile run by the defendant. The deceased, with a group of other children twenty-five to thirty in number, were skipping and running across the boulevard. One Galiano, seeing the automobile coming toward the children, ran out to about the centre of the boulevard and tried to stop the boys; holding his left hand horizontally and his right hand upward, facing toward the automobile. Eight or ten of the children continued across the boulevard. The deceased, who perhaps at first was slightly behind some of the others, was “skipping sideways . . . skipped ... in between the boys. . . . The way he was skipping toward the end of the line ” brought him facing toward the automobile. He was slightly in advance of the boy next to him, perhaps a foot, and had come to a stop before he was struck. There was evidence from which it might have been found that the defendant was driving at a rate of speed exceeding fifteen miles an hour, some witnesses estimating it as high as twenty-five, and that apparently he did not abate the speed from the time he saw the boys two hundred feet away from them until ,
Whether the deceased was in the exercise of due care or not was a question of fact. He was at a public park in company with a large number of boys. The conduct of the group was what might have been expected of normal boys out for a holiday. Any one of such a large group of children, if he paused to reason about it in advance, fairly might have expected that no automobile would be driven through their midst at a high rate of speed. The main body appears to have responded quickly to the warning of Galiano. It falls far short of being negligence as matter of law for the decedent to have run to the end of the line of his companions and stopped a foot in advance of them. The boulevard was not a race track but a place where travellers had a right to be. This branch of the case falls within the class of Donovan v. Bernhard, 208 Mass. 181, Rasmussen v. Whipple, 211 Mass. 546, Ayers v. Ratshesky, 213 Mass. 589, Harrington v. Boston Elevated Railway, 214 Mass. 563, and Sheehan v. Boston & Northern Street Railway, 215 Mass. 463. It is plainly distinguishable from Kyle v. Boston Elevated Railway, 215 Mass. 260, Bothwell v. Boston Elevated Railway, 215 Mass. 467, Mills v. Powers, 216 Mass. 36, and cases of that class.
The evidence was ample for a finding of negligence on the part of the defendant. It was for the jury to say whether he was not violating St. 1909, c. 534, § 16 as amended by St. 1910, c. 605, § 6, by operating his automobile at a rate of speed “greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public.” Commonwealth v. Cassidy, 209 Mass. 24. It might have been pronounced negligence to run an automobile along this boulevard within a foot or two of a group of boys which might have been seen by the defendant to have been restrained by their adult companion and within about the same distance of others who had run ahead of the group which was stopped.
Exceptions overruled.