217 Mass. 188 | Mass. | 1914
The case was submitted to the jury under proper instructions, and the requests of the defendant for rulings were correctly dealt with. The question of the care required of the plaintiff’s intestate, if he was of sufficient development and intelligence to be allowed to go upon the street alone, was left to the jury with accurate instructions. The duty of his parents, if he was not able to take care of himself, was to provide suitable oversight for him, and it was properly left to the jury to say whether this was done. The rule stated in Hudson v. Lynn & Boston Railroad, 185 Mass. 510, and Bothwell v. Boston Elevated Railway, 215 Mass. 467, that in order to recover against a street railway company for the death of a person not a passenger, it must be proved that the deceased was giving reasonably active and intelligent attention to his own safety, and that a negative and passive freedom from fault on his part is not enough, was not intended to extend to the case of a child who is too young to take proper care of himself. The right to recover for the death of such a child depends upon the diligence exercised by his parents or those who are charged with the duty of looking out for his safety. In the -first of the two cases cited above, the deceased was in a stupor, in the second he was in a state of overpowering fright, and neither condition was due to any fault or negligence of the defendant, and by reason thereof each one was rendered unable to. care for
It was for the jury to say whether the boy, if he was of sufficient capacity to be allowed to go alone upon the street, was exercising that degree of diligence which reasonably could be required from one of his age. If he was too young for this, it was for the jury to say whether his parents actually had exercised due diligence in providing for him the oversight of his elder sisters. If the arrangement which they had made for the purpose temporarily failed of effect without negligence on their part, this was not necessarily fatal to the maintenance of the action.
What has been stated is supported by many of our decisions. It is enough to cite a few of them. Commonwealth v. Metropolitan Railroad, 107 Mass. 236. Powers v. Quincy & Boston Street Railway, 163 Mass. 5. Hewitt v. Taunton Street Railway, 167 Mass. 483. Ingraham v. Boston & Northern Street Railway, 207 Mass. 451. In all of these cases (and many others might have been cited to the same effect), the defendant was held liable; in all of them there ought not to have been any recovery if the present defendant’s argument now were upheld.
We do not deem it necessary to go over the case in detail. What we have said disposes of the exceptions which have been argued.
Exceptions overruled.
