211 Mass. 546 | Mass. | 1912
The plaintiff’s intestate, a boy twelve years of age, while selling papers on the easterly roadway of Blue Hill Avenue near Mattapan Square, was struck by the defendant’s automobile and killed. At the time of the accident the defendant was in the automobile, and the driver acted immediately under his direction. Accordingly the gross negligence of the employee becomes immaterial, and it is conceded that the plaintiff is obliged to show only ordinary negligence on the part of the defendant or his driver. R. L. c. 171, § 2.
Near the place of the accident passengers travelling on electric cars from Brockton, Canton and Hyde Park change cars for Boston, and many people were standing or moving in the roadway as the automobile approached. There was evidence upon which the jury could find that it was being driven at a rapid rate of speed, one witness stating that it was going eighteen or twenty miles an hour, and others that it ran seventy-five or eighty feet beyond the place of the accident although it could be stopped in its own length when going at the rate of ten miles. It does not appear that the automobile was “approaching a crossing of intersecting ways, or . . . traversing a crossing or intersection of ways,” and the statutory provision making a rate of eight miles an hour prima facie evidence of negligence does not apply. But
The due care of the deceased is a closer question. If he suddenly left the crowd of people and jumped in front of the approaching car as the defendant testified, or if he had safely crossed in sight of the machine and then suddenly ran back just in front of it, as the driver said, his conduct would be generally condemned as careless. But there were other versions of the conduct - of the deceased which the jury apparently accepted and we cannot say as matter of law that they were not warranted in doing so. Taking the evidence most favorable to the plaintiff, and recognizing that the standard of care by which the conduct of his intestate must be measured is not that of an adult but of the ordinarily careful boy of twelve years, we are of opinion that the case comes within the general rule that when a minor lawfully walking in the highway is run over by a vehicle, the question of his due care, as well as that of the negligence of the driver, is usually one of fact
In accordance with the terms of the report judgment is to be entered for the plaintiff in the sum of $2,000.
So ordered.