Patrick v. Deziel

Crosby, J. The plaintiff, a boy twelve years old, was struck on June 28, 1915, by an automobile operated by the defendant upon a public highway in Lowell, and received the injuries for which this action is brought. The highway is seventy-two feet wide between the curbstones and runs in a northerly and southerly direction; and in the centre there is a single street railway track. The accident happened at about half past four o’clock in the afternoon. The plaintiff, who was rolling a large iron hoop along the sidewalk on the easterly side of the street, crossed the street diagonally in a southerly direction, and while in the gutter on the westerly side of the street was struck by the automobile. The evidence as to the circumstances of the accident was conflicting. The defendant testified and offered evidence to show that, while he was operating his machine at a rate of six miles an hour, the plaintiff suddenly ran in front of, and only about two feet from the machine and was struck before the defendant could stop his car. If the jury believed this evidence, it is plain there could be no recovery. Apparently the jury did not credit this description of the accident. The plaintiff offered evidence to show that he was rolling his hoop on the extreme right hand or westerly side of the street, near the gutter; that he did not see the automobile which was going in the same direction; that he was struck from behind; and that there were no other vehicles upon the street to interfere with or prevent the defendant avoiding a collision. 1. The plaintiff testified that he crossed the track to get on the right side of the road, and “looked back and front and there was nothing coming, that he did not see the automobile when he looked back.” When asked “Whether or not you heard any horn sounded?” he answered, “No, sir.” [508] The plaintiff was not a trespasser upon the highway because he was rolling a hoop, and the defendant had no right to run over him. O’Brien v. Hudner, 182 Mass. 381. Slattery v. Lawrence Ice Co. 190 Mass. 79. Under St. 1914, c. 553, which applies to this case, the plaintiff is presumed to have been in the exercise of due care, and contributory negligence on his part is an affirmative defence to be set up in the answer and proved by the defendant. In view of the width of the street, the fact that the accident occurred upon the extreme right side of the way, and the precautions which the plaintiff testified he took to avoid injury, we do not think it could be ruled that the defendant had overcome the presumption created by the statute, or proved affirmatively that the plaintiff’s conduct contributed to his injury, but that these questions were matters of fact for the jury to decide. O’Brien v. Hudner, supra. Beale v. Old Colony Street Railway, 196 Mass. 119. Dowd v. Tighe, 209 Mass. 464. 2. The defendant introduced in evidence the following ordinance of the city of Lowell: “No person shall, within the limits of any public street or highway in the city, play at any game of ball, snow-ball, foot-ball, or any other game, amusement, or exercise, interfering with the convenient and free use of such street or highway by persons travelling or passing along the same.” The defendant contends that the plaintiff at the time he was hurt was acting in violation of this ordinance, and that such violation was the cause of his injury; and therefore that the defendant is not liable unless the plaintiff prove the acts of the defendant amounted to gross and wilful negligence. We are unable to-agree with this contention. It is to be noted that the ordinance does not absolutely prohibit games or amusements in the highway, but only such as interfere “with the convenient and free use of such street or highway by persons travelling or passing along the same.” Whether the plaintiff was acting in violation of the ordinance was a question of fact for the jury to determine under proper instructions. As the charge of the judge is not reported, and as no exceptions were taken thereto, we must assume that full and accurate instructions were given. 3. The defendant owed to the plaintiff the duty of reasonable care; and, without reciting the evidence, we are of opinion that [509] it could have been found that the defendant could have avoided the collision by the exercise of such care. The defendant’s requests for rulings could not properly have been granted. The case was rightly submitted to the jury, and as we perceive no error in the conduct of the trial, the entry must be Exceptions overruled.