284 Mass. 109 | Mass. | 1933
The plaintiff, a boy about three years and eight months old, was injured while riding a tricycle on a concreted area in the yard at the side of the house where he lived. This area was about twenty-five feet wide, and extended from the street to a repair shop conducted by the plaintiff’s father at the rear of the premises. The defendant while backing his automobile from the repair shop to the street struck and injured the plaintiff. The case was heard by a judge of a district court who found for the plaintiff and at the request of the defendant reported it on rulings made and refusals to rule as requested to the Appellate Division where an order was made for the entry of “Report dismissed.” The defendant has appealed to this court.
The defendant drove upon the premises to make inquiry as to repairs on his automobile and stopped in the driveway of the repair shop in such position that it was necessary for him to back out. Before starting to back he looked to the rear but did not see the plaintiff. There was evidence from which it might have been found that the defendant’s automobile struck the plaintiff at a point about forty feet from the shop and there was no testimony from the defendant or any one else that he looked behind again after starting to back. There was evidence that he “backed out at an angle,” fast, and not “like the rest of the machines” although he had seen two or three boys around when he drove in. The backing of any vehicle entails more or less limitation on the view by the driver of the area to be traversed and thus requires corresponding vigilance on his part to avoid causing injury to persons who are known to be, or likely to be, there, whether the vehicle is being backed on a public street or on private land. Dowd v. Tighe, 209 Mass. 464. Noonan v. P. M. Leavitt Co. 238 Mass. 481. Millay v. Town Taxi, Inc. 242 Mass. 314. Smith v. Whittall, 257 Mass. 306. Slora v. Streeter & Sons Co. 264 Mass. 586. Wilgoren v. Pelton, 266 Mass. 17. In the situation which on the evidence might be found to have existed the finding of the trial judge that the defendant did not exercise the requisite vigilance was warranted.
The judge ruled as requested by the defendant that “A
The judge rightly refused to give the defendant’s third request for a ruling that “The presence of the plaintiff unattended on the driveway involved in this accident is prima facie evidence of negligence of the person having custody of the plaintiff” and the defendant’s fourth request for a ruling that “If the plaintiff’s parents permitted him to play on the driveway unattended, then as a matter of law the parents must be found to have been negligent.” Language similar to that in the request first quoted may be found in cases where injury has been received by a very young child who has strayed away from home and come unattended upon a public street. Wright v. Malden & Melrose Railroad, 4 Allen, 283. Sullivan v. Chadwick, 236 Mass. 130, 134. But those are not the circumstances in the present case. The plaintiff was not on the street but on the premises of his parents, at the side of the house where the family lived and on a concrete surface covering the area twenty-five feet wide between the house and a fence which marked the boundary of the lot. A part of this area was available for use by drivers of automobiles who had occasion to go to and from the repair shop but all that
There was no evidence to indicate that any one was immediately in charge of the plaintiff at the time of his injury, or when, last before that event, any custody or supervision had been exercised over him.' Although the evidence did not warrant the finding that the plaintiff had sustained the burden of proving that his parents exercised due care and even if it had affirmatively appeared that they did not exercise such care and were negligent in leaving him to play in the yard, the plaintiff would not be barred from recovery if such negligence were not the proximate cause of his injury. Lynch v. Smith, 104 Mass. 52. “When a child is too young to have any intelligence or discretion in regard to taking care of itself in a public street, and when it has carelessly been allowed to go there unattended, still while upon the street it may have done nothing which would be deemed dangerous or lacking in due care, provided its movements had been directed by an adult person of reasonable and ordinary prudence in charge of it, and yet it may have been hurt through the carelessness of another person. Under such circumstances, it may recover damages for the injury.” Wiswell v. Doyle, 160 Mass. 42, 43. Gibbons v. Williams, 135 Mass. 333, 335, 336. McNeil v. Boston Ice Co. 173 Mass. 570, 577. Miller v. Flash Chemical Co. 230 Mass. 419, 421. Stachowics v. Matera, 257 Mass. 283, 284. The plaintiff in this case was not on a public street but was in his own yard, and no rule less favorable to him is to be applied. On scanty evidence we are of the opinion that the judge would have been warranted in finding that the
Order dismissing report reversed.
Case to stand for a new trial.