Nelligan v. Fontaine

Carroll, J. The plaintiff’s intestate, a child less than five years of age, was struck and killed by an automobile driven by the defendant’s son while acting as his agent. It was admitted that the deceased was properly in the charge of his aunt who was in the exercise of due care. There was sufficient evidence of the agent’s negligence to warrant the submission of this question to the jury.. They might have found the following facts: The automobile, going north, turned out, to avoid a vehicle on the east side of the street, then turned back toward the east side of the street to avoid an ice wagon standing near the middle of the street and facing south, and, after passing the ice wagon, turned again to the west. At a point eighteen feet in the rear of the ice wagon and about three feet from the west curbing, it ran over the intestate. No signal was given of the approach of the machine, and the speed was not lessened although the driver knew “there was danger around an ice wagon.” He admitted he did not see the child before the accident and the first he knew that anything had happened was from the jar. It also could be found that as the automobile approached the deceased, the head of the defendant’s agent was turned over his left shoulder toward the rear of the ice wagon, and he was speaking to some one whom he called Fred. Although the bill of exceptions does not say that it contains all the material evidence (Evans v. County of Middlesex, 209 Mass. 474, 481) sufficient facts are reported to make the case a proper one for the jury to consider, and, if they believed the reported facts to be true, they could find the defendant to have been negligent. [331] The defendant excepted to the statement of the judge in his charge: “If the accident happened as claimed by the plaintiff they might have a right to find for the plaintiff.” Even if this were erroneous, the whole charge is not reported; we do not know what preceded or followed the remark, to what part of the evidence it was directed, or how it was qualified or restricted by other parts of the charge. For these reasons this exception is overruled. Rock v. Indian Orchard Mills, 142 Mass. 522. Doe v. Boston & Worcester Street Railway, 195 Mass. 168, 172. The question put to the witness Cook on cross-examination by the plaintiff was not answered, and the exception to this question must be overruled. The statement of counsel to the jury when this witness was testifying, in directing their attention to the memorandum book, was referred to in the charge and the jury were told to entirely disregard it. No harm, therefore, was done the defendant. Exceptions overruled.