211 Mass. 79 | Mass. | 1912
The sole question in these cases is, Was there evidence upon which the jury could find that Marguerite Purcell, hereinafter called the plaintiff, was in the exercise of due care? It is conceded that there was evidence of -the defendant’s negligence; and the case was submitted to the jury under instructions to which no exception was taken.
Upon the issue in question the evidence tends to show the following facts: At 4.45 p. M., on May 14, 1908, the plaintiff, who was nearly six and one half years of age, stood at the southwest corner of Massachusetts and Park Avenues in Arlington and looked both ways along Massachusetts Avenue to see whether any electric cars were approaching. She saw no car coming from the direction of Boston; and although her testimony was that the distance she could see was not “very far because it was a hill,” and was equal to the distance “from the witness stand to a building across the street,” which was estimated by counsel to be about one hundred and ten feet, the jury might adopt the motorman’s statement that “from the place of the accident to the top of the hill towards Boston the street is straight and one can see for a distance of three minutes’ walk, or four hundred yards.” She saw a Boston bound car coming from the north, or from Lexington, and waited at the edge of the sidewalk until this car stopped at the usual stopping place for inbound cars, directly in front of and about ten feet distant from where she was standing. She then stepped upon the crosswalk, passed about four feet in the rear of this stationary car, and as she stepped upon the farther or outbound track was struck by a car coming from Boston. She also testified that when she was walking behind the standing car she listened but did not hear any car coming; and the jury could find that the motorman did not ring the gong, although the defendant’s rules required
The plaintiff was concededly old enough and possessed of sufficient intelligence and experience to be permitted to go upon the street unattended. The standard by which her conduct must be tested, however, is not that of an adult. See Kennedy v. Worcester Consolidated Street Railway, 210 Mass. 132. She must show that she exercised the degree of care which an ordinarily prudent and careful girl of her age is accustomed to use or reasonably may be expected to use under like circumstances. It was a question of fact for the jury whether her conduct measured up to that standard. McDermott v. Boston Elevated Railway, 184 Mass. 126. Burns v. Worcester Consolidated Street Railway, 193 Mass. 63.
From the plaintiff’s statement that when she was behind the standing' car she listened and did not hear any car coming, considered in connection with her' knowledge of the running of electric cars as shown by the testimony of her mother, the jury could infer that the plaintiff knew of the custom to sound the gong on a car that was approaching a standing one, and that she relied somewhat upon the fact that she heard no warning gong from the car which struck her. Murphy v. Boston Elevated Railway, 204 Mass. 229. This was evidence of some care, and is sufficient to distinguish the case at bar from those where the evidence shows an entire absence of care on the part of the plaintiff. Mullen v. Springfield Street Railway, 164 Mass. 450. Stackpole v. Boston Elevated Railway, 193 Mass. 562. Holian v. Boston Elevated Railway, 194 Mass. 74. And the jury may have believed that the failure of the plaintiff to hear the noise of the approaching car was due to its distance at the time, and that the intervening space was travelled in a few seconds by reason of the high speed at which the car was running. We are of opinion that the cases were rightly submitted to the jury.
Exceptions overruled.
