Johnson v. Kelleher

Barker, J. The plaintiff was a child of between ten and eleven years of age, and of at least the ordinary intelligence and capacity of persons of her years. The accident occurred on the Newburyport part of the Newburyport and Salisbury bridge, near the draw. The Salisbury part of the bridge, including the draw, is of iron, with a plank driveway about twenty feet wide, having on the northwest side a street car track of the ordinary gouge, and on the opposite side a footpath or sidewalk about six feet wide, separated from the driveway by a railing about three feet high, and with a gate at each end of the draw. The Newburyport part of the bridge is of wooden truss-work heavily timbered and sheathed with plank fourteen inches wide at the ordinary height of the hubs of wheels. On this part of the bridge are two driveways, each ten and a half feet wide, separated by a timber chord two feet in thickness, the northwest driveway containing a car track. There is also a footpath about five feet wide, entirely separated from the driveway. The rail of the car track in the northwest driveway, where the accident is alleged to have occurred, is three feet and eight inches from the northwest side of the bridge, and the other rail is two feet and three inches from the middle chord. The plaintiff testified in substance that she was walking from Salisbury to Newburyport, upon an errand for her father; that as she walked toward the bridge she saw two teams of the defendant loading with stone at a quarry; that before she got to the bridge she looked around and saw the teams coming, that she walked on the sidewalk of the bridge to the Newburyport end of the draw, and then left the sidewalk and crossed the driveway and car track to the further side to see a boat on the river; that as she crossed the driveway she saw the teams approaching at some distance behind her, just coming on to the bridge; that the place where she stood to look at the boat was at the northwest side of the northwest driveway, a few feet from the draw, and that when she turned to come away from the [127] driveway she saw the teams, a few feet away, approaching, with one driver; that she stood still and waited until the forward one, which was in control of the driver, passed, and then crossed the driveway in front of the rear team, which was only a few feet behind the forward one; that when she had crossed she thought there was not room to get by the team on that side, and put up her hands to pull on the reins to stop the horse, and called to the driver to stop the horse, but he made no answer; that she then stooped to pass by on the side of the cart to which she had crossed, was struck by the cart and pushed against the end of the middle chord of the bridge, and injured. There was also evidence tending to show that the accident did not occur in the manner testified to by the plaintiff, but in consequence of her falling off from the tail-board of the forward cart while attempting to ride, after she had been forbidden by the driver to do so, and after he had twice removed her from the cart and placed her on the sidewalk of the bridge, and told her to stay there or she would get hurt. It appeared that the carts were tip-carts of ordinary height, loaded with stone, and that the driver was driving the forward horse, and that the rear horse was following a few feet behind. The question for decision is whether the court below erred in refusing to direct a verdict for the defendant. It is manifest that the plaintiff cannot be said, as matter of law, to have been guilty of negligence, if the accident occurred as she stated in her testimony, and that it was for the jury to determine both how the accident occurred, and whether or not she was guilty of negligence. She was a child, and was required to exercise only that degree of care, prudence, and foresight which is reasonably to be expected of children of her age. She committed no unlawful act in leaving the sidewalk and walking across the driveways to the side of the bridge, or in standing at the side to look at the boat, or in attempting to return. Whether her conduct in all that led up to the accident was or was not negligent was for the jury. So, too, was "the question of the defendant’s negligence. Both of his teams were in charge of one person, who was driving the forward horse, while the rear one followed without actual control a few feet behind. While this is not an unusual mode, of [128] managing tip-carts, whether in any particular case it is negligent depends upon the particular circumstances of that case, and in the case at bar could not, as matter of law, have been said to have been due care. The case was properly left to the jury. Exceptions overruled.