296 Mass. 455 | Mass. | 1937
These are actions of tort arising out of an automobile accident that occurred on August 25, 1934. The defendant Hathaway Baking Company is the owner of a motor vehicle involved in the accident. The defendant Emmett R. Kelley was the driver of the motor vehicle which was being used upon the business of the owner. The plaintiff Norman St. Pierre, who was three years and four months old at the time of the accident, brings his actions by his next friend for personal injuries. The plaintiff Camille St. Pierre is the father of the minor plaintiff, and brings his actions for consequential damages. The minor
The actions were tried before an auditor, whose findings of fact were not final. He furnished the parties with copies of his draft reports, and notified them of the time and place when and where they might attend and suggest such alterations as they might think proper. The parties appeared at the hearing on the draft reports on August 6, 1936. The auditor’s final reports were filed on August 13, 1936. No party within ten days after tie filing of the reports filed a statement insisting upon a jury trial or reserving the right to introduce further evidence under Rule 88 of the Superior Court (1932).
The cases were heard without a jury, upon the plaintiffs’ motions that the auditor’s reports “be confirmed, and judgment be entered thereon.” No party offered any testimony other than the auditor’s reports at the hearing in the Superior Court. The judge found for the plaintiffs on the auditor’s reports, and assessed the damages in each action. The defendant in each case excepted to the “ruling and order” of the presiding judge “in allowing the plaintiff’s motion.”
In substance the issue is, Was the mother, the custodian of the plaintiff, in the exercise of due care of the plaintiff at the time of the injury? We shall consider the actions on this single issue.
The auditor’s reports, in substance, disclose the following facts: On August 25, 1934, at about 9:40 a.m., the plaintiff, three years and four months old, resided with his father and mother at 67 Connors Street, Fitchburg, Massachusetts. Connors Street is a dead end street of short length, and very little travel goes over it. The street was of tar and gravel construction, twenty-two feet wide from one edge of the macadam to the other. The surface was smooth and dry. There were no curbs on the sides of the street, though there was an unpaved gutter on each side of it, with a slight rise from the gutter to a dirt sidewalk on each
The auditor found that the plaintiff’s mother acted as a reasonably prudent mother would have acted in all the existing circumstances; that she was not guilty of any negligence contributing to the accident; that no contributory negligence could be attributed to the plaintiff; and that he acted as a normal and ordinary child of his years.
The auditor made no specific findings as to where the plaintiff was or what he was doing at the time of the accident, but it can be fairly implied that he was playing in the sand pile as he had been doing a minute before the accident.
Concerning the defendant Kelley’s conduct after the truck was stopped, the auditor found that the truck was stopped before the front steps of the house at 51 Connors Street; that the truck was fifteen feet long; that Kelley got out on the left hand side, went around the back of the truck, up the front steps leading to the house and read a note; that he then went down the steps to the rear of the truck, opened the door and took out bread; that retracing his steps to the front door of the house, he left the bread and returned to the rear of the truck, shut the door, went to the left side, got into the driver’s seat, started the engine and drove the truck straight ahead; and that he heard a scream after starting ahead and brought the truck to an immediate stop. The auditor stated that “by the exercise of reasonable care and diligence, the defendant [Kelley! would, could and should have seen the children and have avoided hitting them. Although there was nothing to obstruct his
We are of opinion, on the facts found by the auditor and above set out, that the finding of the auditor that the plaintiff’s mother was in the exercise of due care and was not guilty of any negligence contributing to the accident was warranted. Summarized, these facts are that the mother was justified, under the circumstances, in believing that the plaintiff was in a position of safety at the sand pile when she went into the house, in view of the facts that the child, so far as appears, was a normal child of his years, that the truck was stopped ten or twelve feet away from the children,- and that there was no obstruction to the view of Kelley and no obstruction on the street as to. the use of the street by Kelley, and in view of the legal principle that the plaintiff’s mother had a right to rely to some extent on the presumption that Kelley, in operating the truck, would not operate over the sidewalk or run down the child negligently. Hirrel v. Lacey, 274 Mass. 431, 435. Wilson v. Freeman, 271 Mass. 438, 440. Dube v. Keogh Storage Co. 236 Mass. 488.
Exceptions overruled.