Marsland v. Murray

C. Allen, J. It is not contended, in behalf of the defendant, in the argument, that he was free from negligence in permitting his horse to be unharnessed and unattended upon the [93] highway. See Barnes v. Chapin, 4 Allen, 444; Lyons v. Merrick, 105 Mass. 71; Goodman v. Gay, 15 Penn. St. 188. But he contends that there was no sufficient evidence to show that the plaintiff’s injury was received from a kick of the horse, or that the plaintiff was himself in the exercise of due care; and these are the only questions we have to consider. 1. The evidence, if believed, was ample to warrant the jury in finding that the injury was caused by a kick of the horse. 2. It is true that a plaintiff cannot recover in an action like this, where there is nothing to show whether he was careful or negligent. Crafts v. Boston, 109 Mass. 519. But, as was said in Mayo v. Boston & Maine Railroad, 104 Mass. 137, 141, the question of due care on the part of the plaintiff presents itself in two aspects; one being whether it was consistent with due care that he was in the place of danger; the other, whether, being in such a place, he used reasonable precautions against danger. And in the case of an injury to a young child like the plaintiff, the question becomes chiefly one of due care on the part of the person having charge of the child, in allowing it to be in the place where the injury was received. Gibbons v. Williams, 135 Mass. 333. The fact that a very young child is allowed to be upon a much used highway in a city, unattended, is prima facie, but not conclusive, evidence of negligence on the part of the person in charge. Gibbons v. Williams, 135 Mass. 333. Wright v. Malden & Melrose Railroad, 4 Allen, 283. In the present case, the plaintiff was between four and five years old. The situation of the highway, the amount of its use, and the situation of the house in respect to the highway, are not disclosed. The plaintiff appears to have been under the care of his mother, who testified that she saw him a few minutes before the injury; that he was in the front room at the time; that he had been in the house nearly all the afternoon until then; that he ran, out for a few moments and came right back; that she did not let him go out; and that she was nursing a baby, and the plaintiff walked into the back room, and was gone only a minute or two, when she ran to the door and saw him covered with blood. The father also testified that he left the plaintiff at home with his wife and some other persons, was gone from his house but' a short time, five minutes, and [94] that when he returned the plaintiff had been injured. Upon this evidence, we cannot say, as matter of law, that the mother did not exercise due care to prevent the child from escaping from the house and going alone upon the highway; and this question was properly left to the jury. If the child was upon the highway without any want of due care on the part of his mother, it would be rather difficult to suppose any act by him while there which would not be consistent with such care as children of that age are accustomed to use. It was only necessary for him to exercise such discretion as he had. Lynch v. Smith, 104 Mass. 52. Carter v. Towne, 98 Mass. 567. This rule has been applied in cases where children have been bitten by dogs, which, if left undisturbed, would probably not have injured the children. Munn v. Reed, 4 Allen, 431. Plumley v. Birge, 124 Mass. 57. It was not necessary for the plaintiff to introduce affirmative testimony to show what he was doing at the moment of receiving the injury. Mayo v. Boston & Maine Railroad, 104 Mass. 137. The horse was improperly in the highway; that is admitted. And if the jury found that the plaintiff was there without fault, they might also properly find that there, was no contributory negligence on his part which should prevent his recovery. Bxcejotions overruled.