Levesque v. Dumont

Madigan, J. Plaintiff’s intestate, a child of nine years and two months, was struck by the defendant’s automobile, a Ford truck, sustaining injuries that rendered him unconscious, in which condition he remained until his death. The accident happened on the fifth day of November on Lisbon street in the city of Lewiston. Standing at the curb on the right hand side of the street was a team, and coming up the street on the car tracks of the street railroad was a large covered truck wagon. From curb to curb the street was about forty-five feet wide. Going down the street the automobile came to the teams when they were about opposite each other and passed between them. There were no other automobiles or teams on this portion of the street at the time. Street lights and the automobile lights were lighted. It had been raining and the street was wet. The driver sounded his horn at the crossing next above, and was going at about eight miles an hour as he came to the team and the covered wagon. Deceased was on the left side of the street, when one of his mates called for him to come over and play. When the automobile had reached the tail of the covered wagon the deceased came from behind the covered wagon directly in front of the automobile and about four feet ahead of it. Some witnesses say he was “running,” some “most running.” He hesitated and started to turn back, surprised and confused. Despite the driver’s efforts to avoid hitting the boy he was struck by the right mud guard or wheel. This is substantially the story as told by the disinterested witnesses in the best position to see. [27] Under these circumstances it does not seem negligence for the driver of the car not to sound his horn in passing the wagon. The automobile was plainly visible for a good distance before reaching the teams and there were few people on the street. The police regulations of all municipalities not only discourage, but prohibit, unnecessary noises by automobiles, and the driver would not be led to suspect the appearance of a pedestrian directly in front of his machine. We are satisfied from a careful examination of the evidence that plaintiff’s intestate at the time of the accident was not in the exercise of such care as ordinarily careful boys of his age and intelligence are accustomed to exercise under like circumstances. He started to-cross a public city street frequented by teams and automobiles. Had he looked up the street he must have seen the car approaching and had he been attentive he must have seen the lights projecting their rays by the rear of the team in season to have avoided his peril. Heedlessly he passed right in the path of the car, so near to it that the accident could not be avoided. In Moran v. Smith, 114 Maine, 55, the court says of a child younger than the deceased in this case. “Children even of the age of eight are held to the exercise of some care. They cannot be absolutely careless, and then hold others responsible to them for the results to which their carelessness contributed.” In Colomb v. Portland & Brunswick Street Railway, 100 Maine, 418, a child ten years and seven months old was run over by a street car while attempting to cross the track, the court held “either she did not look to see if a car was approaching or that if she looked she must have seen the car, and her act would hardly be regarded otherwise than a result of a sudden unthinking impulse, or of reckless daring, and that she clearly failed to use that care which a child of her intelligence should use, and consequently her contributory negligence was a bar to her recovery. To the same general effect is a long fine of cases from other States. Therefore, we hold, that the action of the deceased in heedlessly running in front of the automobile is a bar to recovery. Under this view of the case it is unnecessary to pass upon the defendant’s exceptions. Motion for new trial sustained.