Hayes v. Norcross

Decision Date02 January 1895
PartiesHAYES v. NORCROSS et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Salem

D. Charles, for plaintiff.

Robert F. Herrick and Guy Cunningham, for defendants.

OPINION

KNOWLTON J.

There was no evidence that the driver drove over the plaintiff wantonly, and the evidence of negligence on his part was slight, and was contradicted, but we may assume that on this part of the case the plaintiff was entitled to go to the jury. The most important and difficult question in the case is whether there was any evidence that the plaintiff was in the exercise of due care. The circumstances attending the accident, so far as they are material to this question, are clearly shown, and undisputed. The accident happened on Hudson street, in Boston, on the 14th day of October, at about 5 o'clock in the afternoon. The street has an asphalt pavement, and most of the buildings upon it are dwelling houses. There was evidence from a policeman called by the plaintiff that there is much driving upon it, and that there had been frequent complaints of fast driving. The plaintiff was five years and six months old. His mother testified that at his request she had given him permission to go across the street to play with another boy in the yard of a neighbor, and that she had often told him not to play upon the street. The burden was on the plaintiff to establish by affirmative evidence facts which would warrant the jury in finding that he was in the exercise of due care. Inasmuch as his mother, who was his custodian permitted him to go across the street unattended, and come back in the same way, he cannot maintain his case without proving that he was of such intelligence and experience that he might properly be permitted to go back and forth across the street alone. If we assume in his favor that the jury might find this from his age and from such other circumstances as were shown, the finding necessarily involves a finding that he knew something of the danger of being run over by passing teams, and of the necessity of trying to avoid them. Unless he had such knowledge, his mother was negligent in letting him go out alone, and her negligence would prevent his recovery. If the jury might find that he had such knowledge, and that boys of his age usually have it is there anything in the evidence to show that he used such care as ordinarily careful boys of his age are accustomed to use under like circumstances? The defendant's team was a common covered grocery wagon, drawn by a single horse, and was driven at a trot, according to the testimony, at the rate of about five or six miles an hour. It was near the sidewalk on the side of the street at the right of the...

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51 cases
  • Tyler v. Weed
    • United States
    • Michigan Supreme Court
    • June 30, 1938
    ...a matter of law under the undisputed facts.' The Court in this latter statement, which was obviously dicta, referred to Hayes v. Norcross, 162 Mass. 546, 39 N.E. 282. Such rule has never heretofore been followed in Michigan; and in the case then under consideration by our court, the child w......
  • Hellstern v. Smelowitz
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 25, 1952
    ...has never been adopted in this state, and it is opposed by a decision of so weighty a court as that of Massachusetts. Hayes v. Norcross, 162 Mass. 546, 39 N.E. 282. Without adopting the Illinois rule, we think, however, it is safe to say that there is a presumption that a child under seven ......
  • Easton v. Medema
    • United States
    • Michigan Supreme Court
    • March 28, 1929
    ...directed against plaintiff 5 years and 6 months old, on the ground of his contributory negligence, was sustained in Hayes v. Norcross, 162 Mass. 546, 39 N. E. 282, and he was held ‘bound to show that he exercised such care as ordinary boys of his age and intelligence are accustomed to exerc......
  • The Cleveland, Etc., Railway Co. v. Moneyhun
    • United States
    • Indiana Supreme Court
    • October 21, 1896
    ... ... 653, 11 S.E. 872; Bemiss v. New Orleans, ... etc., R. R. Co. (La.), 18 So. 711; Wendell v ... New York, etc., R. R. Co., 91 N.Y. 420; ... Hayes v. Norcross, 162 Mass. 546, 39 N.E ... 282; Wallace v. New York, etc., R. R. Co., ... 165 Mass. 236, 42 N.E. 1125, s. c. 42 N.E. 1125; ... ...
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