Gulline v. City of Lowell
| Decision Date | 10 May 1887 |
| Citation | 144 Mass. 491,11 N.E. 723 |
| Parties | GULLINE, Adm'r, v. CITY OF LOWELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Tort, brought by James Gulline, as administrator of the estate of his minor son, Robert Gulline, to recover damages under Pub.St. c. 52, § 17, by reason of the death by drowning of said Robert, on June 7, 1884, occasioned by an alleged defect in a bridge known as “Central Bridge,” over the Merrimack river, in Lowell. At the trial in the superior court before BLODGETT, J., without a jury, the following facts appeared: That there was a defect or want of repair in said bridge, and that defendant was bound by law to keep it in repair; that, by reason of said defect, the life of said Robert was lost, and that the defendant had previous reasonable notice of the said defect, and also due notice in writing, as required by law, of the time, place, and cause of said loss of life; that the said bridge is built of iron, with a roadway in the center, and a footway on each side 9 feet and 4 inches wide, and six inches higher than the roadway; that along the whole length of the bridge in the sidewalks on either side, and within a few inches of the roadway, there are latticed iron columns about 10 inches square, 30 feet in height, and about 12 feet apart; from the top of each column to the bottom of the next column, on the same side of the bridge, there were parallel diagonal iron braces about three-quarters of an inch in thickness, and five inches wide, and thirteen inches apart; that there were no other obstructions between the footway and the roadway than these columns and braces; that, at distance of seven inches southerly from one of these latticed posts, on the west side of the bridge, where two parallel diagonal braces went through the planking to connect with the latticed iron pillar by bolts underneath the planking, there was a hole in the planking of the bridge 11 inches square, between the braces, which had been made by the breaking in of the planking, and that through this hole said Robert fell into the river below, and was drowned. It further appeared that the said Robert was seven years of age, bright for his years, and lived with his father in a part of Lowell called Centralville; that there was nothing to intercept the view of the hole, except as herein stated; but neither the father, mother, nor the son knew of any hole or defect in the bridge.
The plaintiff, James Gulline, testified as follows: “On the seventh of June, 1884, about 8 o'clock in the evening, I was going home to Centralville, with my wife, my little girl of three years old, and my son Robert. My wife crossed to the east side of the bridge, and left me with the two children, the little boy on the right hand, and the little girl on the left, on the sidewalk on the west side. Going over the bridge the little girl began to cry, and I said. ‘Robert, go around the other side, and take hold of the little girl's hand;’ and he said, ‘I will, father, but I will clip this post first,’ (that is hugging it,) [[[[the post indicated was the one near the hole above described;] and he did go, and I walked directly on, and looked around after going three or four yards, and there was no boy to be seen. I went directly home, and found the boy was not there, and, after some conversation with my wife, went to look where I left the boy, and saw the hole.” The father made no objection to the boy “clipping” the post, though he knew the boy intended so to do.
Upon the evidence and facts found by the court, the defendant asked the court to rule that the said evidence of plaintiff was insufficient in law to show the due care required to maintain the action, and that there was no evidence of due care on the part of the plaintiff, or his intestate, or those in charge of said intestate. The court declined so to rule, found for the plaintiff, and assessed damages in the sum of $500, and, at the request of the defendant, reported the case for the consideration of the supreme judicial court.W.F. Courtney, for defendant.
Travelers are to use due diligence to avoid accidents, and towns are to keep the highways in such condition that travelers using such care may go safely. The safety and convenience required to be secured for the public ways relate only to their use as ways, for the purposes of travel thereon. Howard v. Bridgewater, 16 Pick 189;Com. v. Wilmington, 105 Mass. 599;Macomber v. Taunton, 100 Mass. 255. The plaintiff's intestate was not using the traveled walk at the time of the accident, and was careless and negligent in being where he was at the time. It is only those who are using the road or walk for legitimate purposes, in the usual and ordinary mode, that can claim indemnity of a town for injuries caused solely by defects in the highway, or by the combined effect of such defects, and pure accident. Richards v. Enfield, 13 Gray, 344;Com. v. Wilmington, 105 Mass. 599. The act of the plaintiff's intestate at the time of the accident was an improper and unauthorized use of the highway, which occasioned or contributed to the accident. He was not using the bridge for a purpose for which the city was bound to erect and maintain it. His improper and unauthorized use of the bridge shows that he was not using due care at the time of the accident, and hence cannot recover in this action, even though the bridge was defective. Stickney v. City of Salem, 3 Allen, 374. The rule is established that an infant is bound to a degree of care proportionate to its age and discretion merely. Washington & G.R. Co. v. Gladmon, 15 Wall. 401; Railroad Co. v. Stout, 17 Wall. 657;Munn v. Reed, 4 Allen, 431. Contributory negligence has, however, been attributed to a child of six years. McMahon v. Northern, etc., R. Co., 39 Md. 438; Baltimore & O.R. Co. v. Schwindling, 101 Pa.St. 258, 47 Amer.Rep. 706; Tighe v. Lowell, 119 Mass. 472. Playing in the street or highway is contributory negligence on the part of children which will bar an action. Stinson v. City of Gardiner, 42 Me. 248; Tighe v. Lowell, supra; Blodgett v. Boston, 8 Allen, 237.
An infant is not sui juris. He belongs to another, to whom discretion in the care of his person is confided. That person is keeper and agent for this purpose; and, in respect to third persons, his act must be deemed that of the infant; his neglect, the infant's neglect. The prevailing doctrine is that, where an infant is of such tender years as to be non sui juris, the negligence of the parent, or one in loco parentis, contributing to the injury, is imputable to the child, and will prevent a recovery by such child, or its personal representative. This doctrine holds good in Massachusetts. Hartfield v. Roper, 21 Wend. 618;Cosgrove v. Ogden, 49 N.Y. 255;Ihl v. Forty-Second St. Ry., 47 N.Y. 323;Lynch v. Smith, 104 Mass. 52;Gibbons v. Williams, 135 Mass. 333;Wright v. Malden & M.R. Co., 4 Allen, 283;Callahan v. Bean, 9 Allen, 401;Zoebisch v. Tarbell, 10 Allen, 385;Meeks v. Southern Pac. R. Co., 52 Cal. 602; Railroad Co. v. Grable, 88 Ill. 441; Railroad Co. v. Vining, 27 Ind. 513;Hathaway v. Railroad Co., 46 Ind. 25;O'Mara v. Railroad Co., 38 N.Y. 445.
This case shows that the child stopped on the bridge, and went outside of the ordinary traveled part thereof to play; and, further, that this was done with the consent and approval of the parent. Defendant contends that this was negligence, both in the parent and child, which precludes recovery in this action. In order to sustain an action for the negligence of the defendant, whereby the plaintiff is alleged to have sustained injury, it must appear that the injury did not occur from any want of ordinary care on the part of the plaintiff, either in whole or in part. Robinson v. Cone, 22 Vt. 213;Murphy v. Deane, 101 Mass. 455. Where an injury has occurred to a child, and there is no evidence that the child was using due care, he cannot recover. Stock v. Wood, 136 Mass. 353. The plaintiff cannot recover if all the evidence in the case is equally consistent with either care or negligence on his part. Crafts v. Boston, 109 Mass. 519;Smith v. First Nat. Bank of Westfield, 99 Mass. 605.
As the burden of proof is upon the plaintiff to show that he used due care, if the evidence on his part has no tendency to show it, or tends to show that he was careless, it is competent for the court, in such a case, to direct a verdict for the defendant. Hackett v. Middlesex Manuf'g Co., 101 Mass. 101;Hinckley v. Cape Cod R. Co., 120 Mass. 257, 262; Crafts v. Boston, supra.
D.S. & G.F. Richardson, for plaintiff.
The burden is upon the plaintiff to show that the intestate, at the time of the accident, was exercising due care. Mayo v. Boston & M.R.R., 104 Mass. 137. This burden may be sustained by proving facts and circumstances from which due care may be inferred. Cook v. Metropolitan R.R., 98 Mass. 361;Com. v. Boston & L.R.R., 126 Mass....
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