Holian v. Boston Elevated Railway Co.

194 Mass. 74 | Mass. | 1907

Sheldon, J.

This is a close case upon the question whether the plaintiff was in the exercise of that degree of care which could properly be expected of a child of her years; but we are of opinion that the verdict for the defendant was ordered rightly.

The evidence showed "that the plaintiff, just before stepping off the curbstone into the roadway, looked up the track and saw the defendant’s car approaching. It was then about eighty feet distant from her. She walked across the street so as to pass in front of the car, which was in plain sight all the time, with nothing whatever to prevent her from seeing it if she had looked at all. She simply walked across the street in face of the approaching car, without taking any precaution for her own safety, when she might have avoided the accident either by quickening her pace or by waiting for the car to pass. There was evidence of previous care on her part in looking for the car before she left the sidewalk; but we cannot find that she did anything at all for her own safety, or even had it in mind after she started to cross the street. She knew0that the car was approaching; she had considered the question whether she would have time enough to get across, and acted upon her affirmative conclusion; then apparently she dismissed the subject entirely from her mind and left her safety wholly to chance or to the care of the defendant’s motorman.

The case does not differ in principle from Murphy v. Boston Elevated Railway, 188 Mass. 8, or from Stackpole v. Boston Elevated Railway, 198 Mass. 562, in which the plaintiff, a boy of eleven years, passed behind a car on one track and was hit by a car on the other track which he testified that he had failed to see; and it was held that his own negligence prevented him from recovering. The cases relied on by the plaintiff’s counsel, while recognizing the undoubted rule that a child is not to be held to the same degree of care that an adult ought to exercise, contain nothing at variance with the rule here stated. McDermott v. Boston Elevated Railway, 184 Mass. 126, simply holds that it is not necessarily negligent for a child six and a half years old to fail to look or listen for a car before following other children across an electric railway track. Mattey v. Whittier Machine Co. 140 Mass. 337, turned upon the fact that there was conflicting evidence as to the circumstances of the accident. In O'Connor v. Boston & Lowell Railroad, 135 Mass. 352, there was no indication of danger when the plaintiff started to cross the track, and he was held by his foot being caught between a rail and the planking. Other cases cited by the plaintiff depend upon the care of the parents or other persons in charge of a child of tender years, and are not applicable here.

The plaintiff seems to have stepped either heedlessly or recklessly in front of a car which, when she left the sidewalk, she knew was coming, which was all the time clearly within her sight with nothing to distract her attention. She neither paused nor hurried, nor did anything to avoid the accident. Mullen v. Springfield Street Railway, 164 Mass. 450. Morey v. Gloucester Street Railway, 171 Mass. 164. Young v. Small, 188 Mass. 4. There was no evidence that at the time of the accident she was exercising any care. Mathes v. Lowell, Lawrence, & Haverhill Street Railway, 177 Mass. 416.

It is unnecessary to consider the question of the defendant’s negligence.

Exceptions overruled.