McCullough v. Eastern Massachusetts Street Railway Co.

Lummus, J. Robert M. McCullough, a boy born December. 6, 1942, alleges a claim for personal injuries, and his father Charles T. McCullough joins in a count for consequential damages (St. 1939, c. 372, § 1, now G. L. [Ter. Ed .3 c. 231, § 6A), in an action of tort, because of an accident at the intersection of Lincoln Avenue and Wendell Street in Saugus, in which a passenger bus of the defendant operated by its servant, on January 14,1948, struck a sled upon which Robert was riding and injured him. There was a verdict for the plaintiff on each count. The exceptions of the defendant bring the case here. There was evidence to the following effect. The plaintiffs live on Wendell Street which descends into Lincoln Avenue. Robert had been sliding on a sled down Wendell Street on the day of the accident, turning into a yard before reaching Lincoln Avenue. He'had let another child have his sled, and was lying on that child’s sled in the middle of Wendell Street without intending to coast on it) Someone pushed him, and the sled with him on it started down the hill. He tried to stop, but could not, and was hit by the bus. The operator of the bus testified that he was operating it on Lincoln Avenue at a speed of ten to fifteen miles an hour, when at least thirty feet from Wendell Street he saw the boy [716] coming down, fifteen or twenty feet from Lincoln Avenue. He knew that there were many children about, that they were coasting, and that he had to have his bus under complete control. His bus was travelling at about ten miles an hour. He could have stopped the bus in twenty feet. He judged that the boy was in a position of great danger. When he saw the boy, he applied his brakes and swung the bus to the left. We think that there was evidence of the negligence of the defendant’s operator, and that the defendant’s motion for a directed verdict was rightly denied. Speedier action by the operator in stopping the bus would probably have prevented the accident, ór at least the jury might have so found. It could have been found that the boy used reasonable care to prevent the sled from, sliding down. It appeared that a by-law of the town of Saugus provided that “No person shall coast or skate on any street or public place excepting on such streets as may be designated by the selectmen, and on public playgrounds.” It was not contended that coasting on Wendell Street had been permitted, and the judge instructed the jury that coasting on Wendell Street was forbidden. Our next inquiry must be, whether the boy was coasting in violation of the by-law. On the evidence of the boy it could have been found that the sled started down the hill because of the act of another child, that the boy did not coast voluntarily, and that he made every reasonable effort to stop the sled. If this were found, he was not violating the by-law, and was not barred from recovery. Towle v. Morin, 295 Mass. 583, 586. Wright v. Carlson, 312 Mass. 584, 589. Reynolds v. Jacobucci, 317 Mass. 500, 504. Whether the boy intended to resume coasting when his own sled was returned to him was immaterial, and for that reason there was no error in refusing the defendant’s seventh request for instructions. What has been [717] said shows that there was no error in granting the sixth request of the plaintiffs by telling the jury in substance that to bar recovery the boy must have been coasting voluntarily. The defendant excepted to the following instruction to the jury. “If this plaintiff was violating and disobeying the law . . . and was in that act of disobeying it, then this defendant owed him no duty except to refrain from ordinary negligence •— or at least, he owed no such duty, and the plaintiff cannot recover.” The judge rightly instructed the jury that the defendant had the burden of proving violation of the by-law. Conroy v. Mather, 217 Mass. 91, 95. Copithorn v. Boston & Maine Railroad, 309 Mass. 363, 369-371. If the judge in effect charged the jury that ordinary negligence would make the defendant liable to a violator of the by-law, such a charge would constitute error. Query v. Howe, 273 Mass. 92, 96. Reynolds v. Jacobucci, 317 Mass. 500. But the part of the charge already quoted did not stand alone. Shortly after that part, after stating that the burden was on the defendant to prove voluntary coasting, the judge said that “if the defendant has satisfied you [of that], then that is the end of this case and you will bring in a verdict for the defendant on both counts.” This was the last word on the subject, and corrected anything to the contrary said earlier. Partridge v. United Elastic Corp. 288 Mass. 138, 145. In the event of the result which we reach, the plaintiffs waive their exceptions. Defendant’s exceptions overruled. Plaintiffs’ exceptions dismissed.