280 Mass. 447 | Mass. | 1932
This is an action of tort brought by a minor • by his next friend to recover compensation for personal injuries resulting to the plaintiff from his being struck, in a street in the city of Somerville, by a motor vehicle owned and operated by the defendant. The defendant requested a ruling that “Upon all the evidence the plaintiff cannot recover,” and made a written motion for a directed verdict. Request and motion were denied. There was a verdict for the plaintiff. The case is here on the defendant’s exceptions. The motion for a directed verdict was denied rightly. There was evidence that the plaintiff, a boy about four years old at the time of the accident, went to a store with his mother, and afterwards was struck and knocked down by an automobile owned and operated by the defendant in the street which was in front of the store. The accident occurred on July 19,1928, at about 5 p.m.
1. A finding that the defendant was negligent was warranted. The evidence was conflicting. It could have been found, however, that the street was fifty feet wide, that the defendant’s automobile was travelling in the center of it, that no other automobiles were parked or moving in the street and no pedestrians were there, that there was nothing in the street to distract the defendant’s attention, that the defendant knew that hundreds of children lived in the
2. It could not have been ruled as matter of law that the plaintiff was negligent. Whatever his capacity of exercising care for his safety (see McDonough v. Vozzela, 247 Mass. 552, 556, and cases cited), he was entitled, under G. L. (Ter. Ed.) c. 231, § 85 (see Powers v. Loring, 231 Mass. 458, 460), to the benefit of the presumption that he exercised the care to be expected of a child of his age under like conditions. See Dowd v. Tighe, 209 Mass. 464; Brennan v. Boston Elevated Railway, 261 Mass. 318; Linnane v. Millman, 261 Mass. 491, 494. There were no admitted or indisputable facts or evidence by which the plaintiff was bound, as to the way in which he reached the street or his conduct in the street, sufficient to overcome this presumption.
3. Even if the plaintiff was incapable of exercising due care for his safety in the circumstances disclosed (see Brennan v. Standard Oil Co. of New York, 187 Mass. 376, 378; Sullivan v. Chadwick, 236 Mass. 130, 134; McDonough v. Vozzela, 247 Mass. 552, 556; Coldiron v. Worcester Consolidated Street Railway, 253 Mass. 462, 463; Grogan v. O’Keeffe’s Inc. 267 Mass. 189, 193), a verdict for the defendant could not have been directed for, though the plaintiff on this branch of the case is not aided by G. L. (Ter. Ed.) c. 231, § 85 (Franco v. Rubin, 268 Mass. 590, 593), it could have been found as a fact that the plaintiff’s mother, in whose custody he was, exercised due care for his protection, that is, that he was in the street without fault on her part.
The evidence tended to show the following facts: The plaintiff’s mother, who kept no servants, took him to the
The evidence recited resembles closely the evidence in Grogan v. O’Keeffe’s Inc. 267 Mass. 189, where it was held that the jury were warranted in finding that the plaintiff’s mother “exercised every care a reasonably prudent person would have exercised in looking out for the safety of the plaintiff.” Page 193. Here, moreover, there was evidence of the nature and habits of the plaintiff tending to •minimize the risk of a brief diversion from him of his mother’s attention. The cases cannot be distinguished. See also Marsland v. Murray, 148 Mass. 91; Sullivan v. Boston Elevated Railway, 192 Mass. 37. Sullivan v. Chadwick, 236 Mass. 130, relied on by the defendant, differs materially in its facts.
The request for a ruling was denied rightly. The question sought to be raised thereby could be raised only by a motion for a directed verdict. Common Law Rule 44 of the Superior Court (1923); (see now Rule 71 of the Superior Court [1932]). Patton v. DeViney, 259 Mass. 100.
Exceptions overruled.