Gulline v. City of Lowell

W. Allen, J. The only question in these exceptions is, whether the court erred in refusing to rule that there was no [495] evidence of due care on the part of the plaintiff or of his intestate. There was evidence of the conduct of the parties, and that is evidence upon the question of due care. There was certainly direct evidence tending to show that, until the boy left his father’s side, an instant before the injury, both were in the exercise of ordinary care, and from which, unless controlled by other evidence, a jury might have inferred that there had been no negligence on the part of either of them. The manner and circumstances in which the plaintiff’s intestate left his father’s side form part of their conduct, and of the facts from which their care or negligence is to be inferred, unless they were of such a character as to be obviously and necessarily inconsistent with ordinary prudence. The court cannot say, as matter of law, that for a boy seven years of age to step aside and clasp a post he is passing, or for his father, in whose care he is, not to forbid him to do it, was negligence. A jury would be justified in finding that, under the circumstances, they were acts natural and to be expected in boys and their fathers of ordinary prudence. It is argued that the boy was making an unlawful use of the highway, and that the father was negligent in allowing it; and several cases are cited where persons injured were debarred of their remedy because making a use of the highway for which it was not intended, but, as applied to the case at bar, they afford very little aid to the defendant. It was decided in Blodgett v. Boston, 8 Allen, 237, (which is affirmed in Tighe v. Lowell, 119 Mass. 472,) that a boy using the highway solely for the purpose of playing could not recover of the-city for an injury caused by a defect in the way. But the court said: “We by no means intend to say that a child who receives an injury caused by a defect or want of repair in a road or street, while passing over or through it, would be barred of all remedy against a town merely because, at the time of the occurrence of the accident, he was also engaged in some childish sport or amusement. There would exist in such a case the important element that the person injured was actually travelling over the way. But this element is wholly wanting in the case at bar. We have here the naked case of an appropriation of a portion of a public street to a use entirely foreign to any design or [496] intent to pass or repass over it for the purpose of travel within the meaning of the statute. It is to this precise case that we confine the expression of our opinion.” In Lyons v. Brookline, 119 Mass. 491, it was held that a child could not recover, who, while sitting playing upon the sidewalk, was injured by the act of a third person. In Stickney v. Salem, 3 Allen, 374, it was held that a person could not recover for injuries caused by the breaking of an insufficient railing, occasioned by his leaning against it, while lounging upon a sidewalk. In Britton v. Cummington, 107 Mass. 347, the plaintiff recovered for damages to his carriage and horses, although he had left his carriage and was engaged in picking berries by the side of the road. The court say, “ There can be no doubt that a traveller on the highway may stop his horse, alight from his carriage, and employ himself, while out of his carriage, in acts that have no connection with his journey or its purpose. Such a position and such employment, for a reasonable time, would not of itself deprive him of his rights as a traveller.” In Hunt v. Salem, 121 Mass. 294, a boy, on his way home, crossed the street to look at toys in a shop window, and stood looking at them four or five minutes, and was injured as he turned away to resume his walk. It was held that he could recover. In the case at bar, the boy was a traveller, and did not cease to be one when he stepped aside for an instant to clasp in play a post in the highway, and almost in his path. The act was a natural and ordinary incident of travelling. Judgment for the plaintiff on the finding.