173 Mass. 570 | Mass. | 1899
The jury returned a verdict for the plaintiff, and to the question submitted to them by the court, “ Was the plaintiff on the crossing at the time the injury was received, or was she in the road near the corner house ? ” answered, “ On the crossing.”
The defendant contends that the mother was negligent in allowing the plaintiff to go out with her oldest sister, a child five years and four months old, to play in the vacant lot at the side of the house, the lot being entirely unfenced and unguarded, and fronting on a public street. But upon the evidence that was, we think, under recent decisions, clearly a question of fact for
The defendant does not, as we understand it, controvert the correctness of the instructions, if the question was one proper upon the evidence to be submitted to the jury.
Even if the plaintiff’s mother was negligent, the plaintiff would still be entitled to recover if while on the street she “ did nothing upon the street which would be deemed dangerous or careless if its movements had been directed by an adult person in charge who was of ordinary and reasonable prudence,” and the jury were in substance so instructed. Wiswell v. Boyle, 160 Mass. 42.
It is possible that the jury may have found that the mother was negligent, but that the plaintiff was not. And the defendant therefore further contends that the plaintiff was not in the exercise of due care. But this again was, we think, upon the evidence, clearly a question of fact for the jury. Wiswell v. Doyle, ubi supra. Lynch v. Smith, 104 Mass. 52. Collins v. South Boston Railroad, 142 Mass. 301.
The position of the wagon at the time of the accident, and consequently of the plaintiff and what she was doing, were in dispute, and it was for the jury to say what the facts were.
We do not understand the defendant to argue that there was no evidence of negligence on its part.
Exceptions overruled.
