Dowd v. Tighe

Braley, J. The defendant having obtained a verdict by order of the trial court at the close of the plaintiff’s evidence, the questions presented by the exceptions are, whether there was any evidence for the jury of the defendant’s negligence, or of her due care. The accident happened on a public way, while the defendant’s servant, in charge of a team loaded with material to be delivered in an adjoining lot, was waiting for an opportunity to drive through a passageway on to the lot and unload. While the evidence for the plaintiff is meagre and somewhat contradictory, the jury could have found that he knew of the presence of children, who were at play around or near the wagon upon which some of them had climbed, and that if he had looked carefully before backing around he would have seen that the plaintiff had joined or was near the group. The team ahead of him having passed in, unloaded, and returned, the exceptions state, that “before he got on his team” he ordered the children off, and the jury further could have found that, without looking to the rear, he then backed the wagon partly around for the purpose of turning into the passageway or lot, and ran over the plaintiff. It is no defense as between the parties, that the plaintiff was not a traveller, and, knowing of the presence of children, the driver in making the movement was called upon to use ordinary care not to endanger the plaintiff. In the opinion of a majority of the court, the question of the defendant’s negligence was for the jury. Slattery v. Lawrence Ice Co. 190 Mass. 79. Jaehnig v. J. G. & B. S. Ferguson Co. 197 Mass. 364. If the jury were satisfied that the plaintiff, who was three years and eight months old when injured, was capable of going upon the street unattended, the degree of care required of her was that of a reasonably careful and prudent child of her age. [467] It could not have been ruled as matter of law, that she should have anticipated that the team might be backed against her, as she stood in the street crying for a toy shovel which a playmate had taken from her and thrown under the wagon. Sullivan v. Boston Elevated Railway, 192 Mass. 37, 44, and cases there collected. If the jury determined that she was incapable of properly caring for herself, then the question of her sister’s negligence, in whose care she had been placed temporarily by their mother, also was a question of fact, for reasons so fully stated in Butler v. New York, New Haven, & Hartford Railroad, 177 Mass. 191, and Sullivan v. Boston Elevated Railway, 192 Mass. 37, that it is unnecessary to repeat them or to recite the evidence from which they would have been justified in finding that her sister had not been unfaithful. See also Ingraham v. Boston & Northern Street Railway, 207 Mass. 451. Exceptions sustained.