Hirrel v. Lacey

Rugg, C.J. This is an action of tort to recover damages for the death of a boy, six and one half years of age, alleged to have resulted from the negligence of the defendants. There was evidence tending to show that the deceased child and his sister, about eight and one half years old, at about half past seven on an April morning left their home on the north side of Mystic Avenue in Medford and walked along a dirt and gravel sidewalk on that street about one hundred feet when they came to a driveway leading across the sidewalk into the defendants’ place of business; that the sister was on the outside of the sidewalk and the deceased on her right hand side; that the sister saw the defendants’ truck on Mystic Avenue about one hundred feet away travelling in the opposite direction; that she next noticed it turn into the driveway, let go her brother’s hand and stepped back to save herself; that if she had tried to save him they both would have been killed; that she was a step beyond the stone roughly marking the edge of the driveway, • and her brother was to her right on the sidewalk and did not see the truck; that the middle of the front of the radiator of the truck of the defendants 'hit her brother; that the right front wheel of the truck went over his body; that the owner of the truck and his son, the driver, were both riding to their work; that neither of them saw the children on the sidewalk and that the first they knew of the accident was when the boy was run over and his sister screamed. The trial judge found that the driver of the truck was negligent; he stated that, in view of the tender years of the deceased and the facts that the truck approached from his side and that his sister who was holding his hand was, in a sense, between him and the truck, he was not satisfied that the deceased was negligent, and made a finding — 435 — for the plaintiff. The plaintiff at the trial abandoned all claims except for the death of the decedent. The finding of the judge that the decedent was struck by the defendants’ truck on the sidewalk and not on the defendants’ land was warranted by the evidence, notwithstanding the evidence tending to show that when the truck came to a stop the body of the decedent was six or eight feet inside the property line of the defendants. The decedent was old enough to exercise some care. Plainly there was evidence to sustain the finding of the judge that the burden resting on the defendants of proving contributory negligence on his part had not been sustained. Eshenwald v. Suffolk Brewing Co. 241 Mass. 166. Forzley v. Bianchi, 240 Mass. 36. Mercier v. Union Street Railway, 230 Mass. 397, 403. He was walking on a sidewalk where he had a right to be, and he justly might rely to a considerable extent on the expectation that no one would drive a motor vehicle across that sidewalk, even at a private driveway, without giving seasonable warning and stopping if necessary in order to avoid a collision. Moreover, the decedent was in the care of his elder sister who might be found to be a competent custodian and to have acted throughout with due care. Direnski v. Eastern Massachusetts Street Railway, 244 Mass. 313, 316. McDonough v. Vozzela, 247 Mass. 552, 556. The case at bar is quite distinguishable on this point from the numerous cases on which the defendants rely, but it is not necessary to review them one by one for the purpose of distinguishing them. Plainly it might have been found to be negligence on the part of the defendants to drive upon the sidewalk without observing the children and acting with due care in view of their presence. The children and the sidewalk were in plain view of the defendants. There appears to have been nothing to obstruct their view. Cairney v. Cook, 266 Mass. 279, 282, 283. King v. Weitzman, 267 Mass. 447. Whatever may have been the significance of the circumstance that the sister, asked on the witness stand whether her brother “ walked right into the truck,’’ bowed — 436 — her head, the plaintiff was not bound by that testimony, and the judge was not required to find that it counteracted all the other evidence in the case warranting the finding. Haun v. LeGrand, 268 Mass. 582, 584. It is manifest that the trial of the case proceeded on the assumption that the plaintiff prior to the issuance of the writ was appointed administrator of the estate of the decedent and that, whatever may have been the imperfections in his declaration, he was seeking to recover only for the death of his intestate. If the defendants desired to rely on the narrow and technical but sound defence that the plaintiff was not administrator of the estate of the decedent at the time the writ was sued out, Brooks v. Boston & Northern Street Railway, 211 Mass. 277, they ought to have done something more than hide the point under a general prayer.. Representative capacity of this nature is admitted unless there is special demand for proof. G. L. c. 231, § 30. The rule stated in Proctor v. Dillon, 235 Mass. 538, 540, does not aid the defendants in these circumstances. Doubtless a demurrer to the declaration might have been sustained, but the defendants did not' demur. They proceeded to trial. The plaintiff waived all rights except the right to recover damages for the death of his intestate. - There ought to have been an allegation in the declaration to the effect that the deceased left next of kin. Fidelity & Casualty Co. of New York v. Huse & Carleton, Inc. 272 Mass. 448, 453, 454. The evidence, however, was abundant to prove that the decedent actually left next of kin. The plaintiff is given leave to amend his declaration in the Superior Court adding an averment to that effect. The circumstance that in the single count in the plaintiff’s declaration were joined a cause of action resting on the death statute and a cause of action for conscious suffering is of no consequence at this stage of the proceedings since at the trial the plaintiff waived all claim for conscious suffering. In view of the way in which the case appears to have been presented to the trial judge, there is no reversible error in the denial of any of the requests for rulings. — 437 — The defendants’ present argument, that there was no evidence that the accident occurred upon a highway, cannot be supported. Their fifth request for ruling assumed that the street and sidewalk constituted a highway. The seventh request also assumed that, unless the evidence showed that the decedent was upon the land of the defendants, they would be liable upon proof of negligence, and the bill of exceptions refers to Mystic Avenue and its adjacent sidewalk as “the highway.” It is manifest, therefore, that the trial of the case proceeded on the theory that the sidewalk was a part of the highway. There is nothing open to the defendants on this point. Commonwealth v. Mara, 257 Mass. 198, 209. Denham v. County Commissioners, 108 Mass. 202, 205. Every contention put forward in behalf of the defendants has been considered, but need not be discussed more at length. Exceptions overruled.