322 Mass. 233 | Mass. | 1948
This is an action of tort by the administrator of Thomas J. Woods, Junior, for the latter’s death and conscious suffering resulting from an automobile accident in Boston on November 17, 1944. The judge under leave reserved ordered the entry of verdicts for the defendant on the two counts after the jury had returned verdicts for the plaintiff. The plaintiff’s exceptions bring the case here.
Dowd, a servant of the defendant and acting within the scope of his authority, was driving an oil truck on Mozart Street in the Jamaica Plain district on the day in question between five and five thirty o’clock in the afternoon. Ahead of him Bolster Street intersected Mozart Street from the left but did not cross. His speed was approximately twenty miles an hour. Both the street lights and the headlights of his truck were lighted. Mozart Street was level, straight and twenty-five feet wide between curbs. On the nearer corner of Bolster Street to his left was a playground and on his right opposite the end of Bolster Street was the Lowell School with its school yard.
There was no other eyewitness to the accident. A man named Berrigan, attracted by a woman’s “screech,” looked back and saw the truck stopped near the center of Mozart Street and not quite into the intersection of Bolster Street, the boy’s body lying in front of and very close to the right front wheel, his head toward the center of the street and his feet about six or eight feet from the sidewalk.
The correctness of the judge’s order depends ultimately on whether there is evidence sufficient to warrant a finding by the jury of the operator’s negligence. It is plain that it could not be ruled, as a matter of law, that the deceased was lacking in due care. The plaintiff has the benefit of the presumption of due care on the part of his intestate afforded him by G. L. (Ter. Ed.) c. 231, § 85. The due care of a boy of seven years is the care reasonably to be expected of a child of similar age. Beale v. Old Colony Street Railway, 196 Mass. 119. Violondo v. Ginsberg, 270 Mass. 418. Assuming that the jury believed Dowd’s testimony in its
The judge was right in ordering the entry of verdicts for the defendant.
Exceptions overruled.