| Mass. | Sep 10, 1883
The plaintiff’s intestate, an infant of the age of nineteen months, while she was unattended in the highway, was run over and injured by the defendant’s ice-cart, driven by his servant. The questions presented relate only to the contributory negligence, personal or imputed, of the injured child, and are confined to rulings and instructions of the court upon that subject.
The child was herself incapable of either negligence or care, and no act of her own could be proof of either. The care or negligence by which she could be affected must have been that of her mother, under whose protection and control she was, and whose care or negligence would be imputed to her. Holly v. Boston Gas Light Co. 8 Gray, 123. Callahan v. Bean, 9 Allen, 401. The plaintiff, therefore, to maintain his action, must show that no negligence of the mother contributed to the injury of the child.
The child was injured while unattended in the highway. This alone would be prima facie proof that she was exposed through the negligence of her mother, under whose charge she was, and that that negligence contributed to her injury. Wright v. Malden & Melrose Railroad, 4 Allen, 283. But it would not be conclusive upon either point. The plaintiff could show that the negligence of the. mother did not contribute to the injury,
The fact that the child was unprotected in the highway is not conclusive proof that the mother was negligent. It raises a presumption, in the absence of other evidence, which is of no weight when the facts and circumstances which give character to the conduct in respect to care or negligence are disclosed. If it appears from the evidence that the mother exercised due care to prevent the child from escaping from, the house, and going alone upon the highway, that care would be imputed to the child; or, in other words, proof that the mother was not negligent would show that there was no contributory negligence.
As the jury were instructed, in effect, that the only question was whether the child was in the street at the time of the injury without present protection, and that the care which the mother took to prevent the child from leaving the house was immaterial, there must be a new trial. Mangam v. Brooklyn Railroad, 38 N.Y. 455" court="NY" date_filed="1868-09-05" href="https://app.midpage.ai/document/mangam-v--brooklyn-rr-co-3608787?utm_source=webapp" opinion_id="3608787">38 N. Y. 455. Fallon v. Central Park Railroad, 64 N. Y. 14. Exceptions sustained.