Gavin v. Jacobs

By the Court. This is an action of tort to recover for the conscious suffering and death of the plaintiff’s intestate, a child aged eight years and ten months, alleged to have been caused by the negligence of the defendant.in operating an automobile. The evidence, in its aspect most favorable to the plaintiff, tended to show that the plaintiff’s intestate, riding on the back of an ice wagon, dropped off the back of the ice wagon and was almost immediately struck by the defendant’s automobile. There is no evidence to support a finding of negligence on the part of the defendant. His [24] speed was not excessive, and there is nothing to indicate that he could have foreseen that the plaintiff’s intestate would be in contact with his automobile. It is manifest also that the accident could not have occurred if the plaintiff’s intestate had used the care reasonably to be expected of a child of his years. Mills v. Powers, 216 Mass. 36. Kelley v. Boston & Northern Street Railway, 223 Mass. 449. Rizzittelli v. Vestine, 246 Mass. 391. Judgment for the defendant on the verdict.