162 Mass. 546 | Mass. | 1895
There was no evidence that the driver drove over the plaintiff wantonly, and the- evidence of negligence on his part was slight, and was contradicted, but we may assume that on this part of the case the plaintiff was entitled to go to the jury. The most important and difficult question in the case is whether there was any evidence that the plaintiff was in the exercise of due care. The circumstances attending the accident, so far as they are material to this question-, are clearly shown and undisputed. The accident happened on Hudson Street in Boston on the 14th of October, at about five o’clock in the
From the time he started he went not more than five or six feet at most before he came in contact with the horse’s legs. The horse must therefore have been very near when he started. He fell between the horse and the sidewalk, and the evidence indicates that he darted out quickly and ran against the horse. There is no view that can be taken of any of the testimony which would warrant a finding that he was ordinarily careful. That there may be other boys who carelessly expose themselves on the streets does not help him in his suit. While he is only bound to show that he exercised such care as ordinary boys of his age and intelligence are accustomed to exercise under like circumstances, the standard is the conduct of boys who are ordinarily careful. In Collins v. South Boston Railroad, 142 Mass. 301, 315, is this language: “ It would seem that, if children unreasonably, intelligently, and intentionally run into danger, they should, take the risks, and that children, as well as adults, should use the prudence and discretion which persons of their years ordinarily have, and that they cannot be permitted with impunity to indulge in conduct which they know, or ought to know, to be careless, because children are often reckless and mischievous.”
Upon the undisputed, facts, the conduct of the plaintiff in this case was such as the judgment of common men would universally condemn as careless in any child of sufficient age and intelligence to be permitted to go alone across a street on which teams are frequently passing. Messenger v. Dennie, 137 Mass. 197; S. C. 141 Mass. 335. Casey v. Smith, 152 Mass. 294.
Exceptions overruled.