Angelary v. Springfield Street Railway Co.

Braley, J. The defendant, although asking generally at the close of the evidence that a verdict be ordered in its favor, has waived the question whether there was any proof of its negligence, and contends, as matter of law, that the plaintiff failed to exercise due care. It- appears that with four other children, including his sister, the plaintiff was riding in a wagon moving over the roadway parallel to, and within four to seven feet of, the defendant’s railway, track located at the side of the way. The evidence, while conflicting, would have warranted the jury in finding that as the driver stopped the plaintiff alighted, passed around from the rear to the side next to the track, and stood fronting the wagon helping his sister to alight by the steps between the wheels, when an open car moving in the same direction with the wagon came up and he was struck and injured by the running board. It may be assumed in the defendant’s behalf, and in accordance with the plaintiff’s evidence, that when sitting on the floor at the rear end of the wagon he looked over the track on which the car approached, where his view was unobstructed for a long distance, and in passing from the wagon he again looked, but failed in each instance to observe the car, which the jury could find was plainly visible. It is urged that he stands no better than if he had neglected to look at all, and consequently must be held to have acted carelessly. Fitzgerald v. Boston Elevated Railway, 194 Mass. 242, 243. Willis v. Boston & Northern Street Railway, 202 Mass. 463, 465. Kennedy v. Worcester Consolidated Street Railway, 210 Mass. 132. But, the plaintiff at the time of the accident was not quite twelve years of age, and the degree of prudence required of him cannot be measured by the standard applicable to adults when acting under similar conditions. “It is commonly a question of fact to be determined in each case as it arises, whether considering his age, experience, intelligence, judgment and alertness, the particular child was capable of understanding the nature and extent of the danger in which he was placed. A situation, which might carry plainly to the mind of an adult compre-, hension of danger, might make little or no impression upon a child.” Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 495. See also Dowd v. Tighe, 209 Mass. 464, 467, and cases cited; Callahan v. Dickson, 210 Mass. 510. The gong was not sounded nor any warning given by the motorman, and the exceptions 113 state that the events leading to the accident "happened very quickly.” The plaintiff, while required to use proper care, might rely upon the presumption that the defendant’s motorman and conductor also would exercise reasonable diligence. Donovan v. Bernhard, 208 Mass. 181, 182. It does not appear that he knew, or from personal experience ought to have known or anticipated, that a passing car might project beyond the rail sufficiently to expose him to the danger of a collision, and it is of some significance that the wagon remained untouched. If as the defendant contends the plaintiff looked carelessly, and therefore must be deemed to have seen the car, his failure to exercise the judgment of the ordinary adult traveller, who could be found to have appreciated the possible danger from the overhang, cannot on the evidence as matter of law be imputed to him. Goldthwait v. Haverhill & Groveland Street Railway, 160 Mass. 554. Nor would his neglect to look or to listen for a car, as he at first testified, have been conclusive. Hennessey v. Taylor, 189 Mass. 583. It still remained under either assumption a question of fact whether in the judgment of the jury his conduct evidenced the lack of such care as boys of his age, capacity and experience should be required to exercise. Butler v. New York, New Haven, & Hartford Railroad, 177 Mass. 191, 192, 193. Callahan v. Dickson, 210 Mass. 510. Chiuccariello v. Campbell, 210 Mass. 532. The present case is clearly distinguishable from cases where children while using the public ways as pedestrians with knowledge of dangerous conditions have been injured in attempting to pass in front of an oncoming car without taking any reasonable precautions to avoid it. Stackpole v. Boston Elevated Railway, 193 Mass. 562. Holian v. Boston Elevated Railway, 194 Mass. 74. See also Russo v. Charles S. Brown Co. 198 Mass. 473. The denial of the request was right. The defendant undoubtedly was entitled to have the jury instructed as to the rule of law by which they were to be guided in passing upon the question of the plaintiff’s due care. Woodbury v. Sparrell Print, 198 Mass. 1. The entire charge, however, is not reported. It must be presumed in the absence of any statement to the contrary that full and' appropriate instructions were given, and, if so, the portion excepted to went no further than to leave to the jury whether under the circumstances to which 114 the judge specifically referred the plaintiff had been shown to have been negligent. But, even on the defendant’s assumption that a question of law was submitted, the jury having decided the question rightly, it has not been prejudiced. Rogers v. Abbot, 206 Mass. 270, 274. Exceptions overruled.