O'Connor v. Boston & Lowell Railroad, 135 Mass. 352

O'Connor v. Boston & Lowell Railroad

135 Mass. 352 | Mass. | 1883

W. Allen, J.

1. The court properly declined to rule that the existence of the sign was conclusive that the plaintiff had no license to use the way and crossing; and the instructions to the jury upon this subject were correct.

2. The sixth prayer for instructions, if it referred only to the conduct of the engineer, was given.' So far as it was intended to ask for a ruling that there was no evidence of negligence except that of the engineer, it was properly refused.

3. We see no error in the instructions of the court as to what would constitute reasonable care in the one party or the other. The court properly refused to give the eighth prayer in the language in which it was expressed.

4. The principal question presented arises upon the rulings and instructions of the court in regard to the contributory negligence of the plaintiff.

The plaintiff was a boy less than five years of age, and was accompanied by his brother, who was nearly nine years of age. The place where the injury occurred was not a public highway, but was a way open for the public to use, and the jury must have found that the plaintiff was lawfully there. The question whether there was negligence in the parents of the plaintiff in allowing him to be there, attended as he was, was properly left to the jury. Mulligan v. Curtis, 100 Mass. 512. Ihl v. Forty-Second Street Railroad, 47 N. Y. 317.

The further question was submitted to the jury, whether the plaintiff and his brother, as the person in whose immediate care he was, were in the exercise of due care in the manner in which he went upon the railroad crossing. The care required was that which would ordinarily be exercised under like circumstances, by boys of four and nine years of age. It is not a case in which the facts do not appear, and it cannot be known whether there was care or negligence, and therefore there is a failure to prove care, or the absence of negligence, as in Crafts v. Boston, 109 Mass. 519, and Hinckley v. Cape Cod Railroad, 120 Mass. 257. The circumstances were in evidence, and the definite question was presented whether the evidence preponderated in favor of care or negligence. We think this question was properly submitted to the jury. Neither of the boys knew of the approaching train, and the negligence was not in respect of danger of collision with *362passing cars, or of direct personal injury from the condition of the crossing, but of stepping into an opening in the way, and thereby being caught and held, so as to be unable to escape from a train which should afterwards pass. How obvious the danger was depended, to some extent, upon the condition of the crossing; and of that the jury had evidence, from their view of the premises, which the court could not have. Then the standard of care to be applied was not that by which conduct is ordinarily measured. It was not the care of a prudent man, but of a prudent boy, that was to be shown. There was no specific fact, such as violation of a law, or disregard of an established regulation, as in Wills v. Lynn & Boston Railroad, 129 Mass. 351, which could give character to the act. It was a question whether there was negligence, under all the circumstances, in not observing and guarding against this particular danger, which was not the peculiar danger to which the attention is naturally directed at railroad crossings. Neither the fact that a hole in a road is known to a traveller of years of discretion, nor that it is plainly visible and would have been seen by him had not his attention been directed elsewhere, is conclusive of negligence in him. Reed v. Northfield, 13 Pick. 94. In George v. Haverhill, 110 Mass. 506, 513, Mr. Justice Colt said: “ It is all to be considered by the jury, but it is not required, as matter of law, that the thoughts of the traveller shall be at all times fixed upon those defects in the road he travels, of which he may have knowledge.”

Whether the plaintiff, in walking backwards that he might see his elder brother, in whose company he was, or the brother, in not observing the hole in the way and preventing the plaintiff from stepping into it, was exercising the care ordinarily shown by children of their ages, was peculiarly a question to be determined by the judgment of the jury upon the facts proved by the evidence. Gaynor v. Old Colony & Newport Railway, 100 Mass. 208. Smith v. Westfield National Bank, 99 Mass. 605. Mayo v. Boston & Maine Railroad, 104 Mass. 137. Lane v. Atlantic Works, 111 Mass. 136. Treat v. Boston & Lowell Railroad, 131 Mass. 371. Fleck v. Union Railway, 134 Mass. 480. Railroad v. Stout, 17 Wall. 657, 663. Exceptions overruled.