Casey v. Smith
| Decision Date | 24 October 1890 |
| Citation | 152 Mass. 294,25 N.E. 734 |
| Parties | CASEY v. SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.A. McGeough, for plaintiff.
Charles F. Gallagher and Hollis R. Bailey, for defendant.
The plaintiff at the time of the accident was three years and nine days old. He was run over on a public street in a crowded part of the city of Boston, and the jury have found in substance, that the accident was caused wholly or in part by his failure to exercise such care as an adult person of ordinary prudence would have exercised under like circumstances. That fact would not prevent his recovery if he was of such age and intelligence that he could properly be alone on the street, and if he used the ordinary care of boys of his age; but if he was too young to take care of himself and was negligently permitted to be on the street, and if he was hurt when an adult in his place would not have been, the negligence whereby he came there would be held to have contributed to the accident. In such a case, his presence there would be a cause, and not merely a condition, of the accident. If a child is too young to be capable of caring for himself, it is the duty of his proper custodian to care for him; and in a suit to recover for an injury caused by the negligence of another, if his custodian was guilty of negligence, that negligence is imputed to him. Collins v Railroad Co., 142 Mass. 314, 7 N.E. 856; Gibbons v Williams, 135 Mass. 335; Lynch v. Smith, 104 Mass. 57. In the present case, the judge ruled, in effect, that the plaintiff was too young to be capable of taking care of himself on a street crowded with vehicles, and that his mother, who was his proper custodian, was negligent in allowing him to be there at the time of the accident. His mother voluntarily permitted him to go upon the street attended by no one but his brother, seven years and nine months old, and his sister, five years and fourteen days old. It was on the 13th day of March, and the weather was clear and cold. She lived on a narrow street, with narrow sidewalks, about 45 feet from the corner of B. street, which is about 25 or 30 feet wide between the curbstones, and has sidewalks about 8 feet wide. She let the three children go out at about 20 minutes past 5 o'clock in the afternoon to await their father's coming home from work. Their father testified that he was accustomed to come home from his work, by way of B. street, at about 10 minutes past 6 o'clock, and that he had frequently met his...
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