Quinn v. Boston Elevated Railway Co.

214 Mass. 306 | Mass. | 1913

Sheldon, J.

There was evidence of due care on the part of the mother of the infant plaintiff. She had taken precautions to keep the child in a safe place, in the yard of the house. It was for the jury to say whether these precautions were sufficient. With the other duties which were incumbent upon her, and with what could be found to be the practical impossibility of keeping the child under her eyes, it cannot be said as matter of law that she failed to exercise any other care which reasonably could be required of her. The case does not resemble Cotter v. Lynn & Boston Railroad, 180 Mass. 145. It is more like such cases as Hewitt v. Taunton Street Railway, 167 Mass. 483; Mellen v. Old Colony Street Railway, 184 Mass. 399; Sullivan v. Boston Elevated Railway, 192 Mass. 37; Ingraham v. Boston & Northern Street Railway, 207 Mass. 451; and Dowd v. Tighe, 209 Mass. 464. It is conceded that this child was too young to exercise care for herself, and that question need not be considered. Grella v. Lewis Wharf Co. 211 Mass. 54, 57.

It is a more difficult question whether there was any evidence of negligence in the operation of the defendant’s car. As to this, it does not seem to us to be material under the circumstances whether the motorman did or did not ring his gong. If he did not do so, yet the child was not misled thereby. She saw the car. And there was evidence that as soon as the motorman realized the impending danger he tried to stop the car as soon as possible; and except from his own testimony we find no evidence of any lack of vigilance on his part. But there was evidence that he either saw or might have seen the child in a position of danger at a distance of thirty feet, and he testified not only that he could have stopped his car within a distance of twelve or fifteen feet, but that he actually did so. In the opinion of the majority of the court the jury were justified in finding, and we must now treat it as settled by their verdict, that even if he did not see her in time to stop his car and avoid the injury which resulted, yet he ought in the exercise of proper care to have done so. In that event, it could be found that the accident was due to his negligence, even though, as soon as he did see her and perceived the danger of running into her, he made every effort in his power to look out for her safety.

Judgment must be entered in each case for the plaintiff in accordance with the terms of the report.

So ordered.