Eshenwald v. Suffolk Brewing Co.

By the Court. There was evidence to support a finding that the plaintiff, a boy four years and eleven months old, on November 7, 1918, while returning alone to his home from a playground where he had been taken by his mother, was walking on the sidewalk on Columbia Road in Boston and was injured by a wagon backing up to the brewery of the defendant, the curbing of the sidewalk being of such conformation that wagons could be backed up to the doors of the brewery. The child was where he had a right to be and apparently in a place of safety on the sidewalk. It might have been found that he did nothing which would be deemed careless if his movements had been directed by an adult of reasonable prudence. McNeil v. Boston Ice Co. 173 Mass. 570. The plaintiff might himself have been found to have been in the exercise of due care. Sullivan v. Chadwick, 236 Mass. 130,134. Forzley v. Bianchi, 240 Mass. 36. There was evidence to the effect that the wagon which was backed upon the plaintiff was loaded with bottles and was marked “Suffolk Brewery Company,” and that wagons, such as that — 168 — wagon was and marked as it was, had been seen upon and about the premises of the defendant; that the product of the defendant was packed in cases and empty bottles were returned to its brewery in cases, and that no outside teams to haul the manufactured material either to or from its premises were employed, and that the wagons used by the defendant had its name on them. This was sufficient to support a finding that the wagon by which the plaintiff' was injured belonged to the defendant and was being used in its business. The slight difference in name between that of the defendant and that given in the testimony of one of the witnesses “Suffolk Brewing Company, Boston,” was not decisive. It simply affected the weight of the testimony. Murphy v. Fred T. Ley & Co. 210 Mass. 371. Norris v. Anthony, 193 Mass. 225. Robinson v. Doe, 224 Mass. 319. D’Addio v. Hinckley Rendering Co. 213 Mass. 465. Exceptions overruled.