Burns v. F. Knight & Son Corp.

• Decision Date: 29 January 1913
• Parties: BURNS v. F. KNIGHT & SON CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 510

100 N.E. 618

BURNS v. F. KNIGHT & SON CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

January 29, 1913

SYLLABUS

Plaintiff's intestate at the time of his death was between seven and eight years of age.

The fourth request mentioned in the opinion was that if the plaintiff's intestate knew, or if an ordinarily prudent child of his age ought to have known, that the girder was being drawn over rollers by horses attached to the front end he was not in the exercise of due care if he placed himself in front of the rollers. The court qualified this by adding 'If he appreciated the danger that there was in putting himself in the place where he was.'

The fifth, sixth, and seventh requests were as follows:

'(5) It is not due care on the part of an ordinarily bright child of seven years and five months of age, who sees men with horses moving a heavy iron girder along the ground, to stand within the natural forward course of a roller above which the girder is laid.

'(6) It is not due care on the part of an ordinarily bright child of seven years and five months of age, who sees men with horses moving a heavy iron girder along the ground, to stand within the natural forward course of a roller above which the girder is laid, even though as a matter of fact the girder may not be resting on the roller and the roller may at the time be stationary.

'(7) It is not due care on the part of an ordinarily bright child of seven years and five months of age to stand within a foot or a foot and a half of a heavy iron girder that is being drawn over unprepared ground by a pair of horses hitched to a chain attached to the girder.'

In his charge, in referring to the question of whether defendant's driver exercised care and diligence, the court said: 'What was the time of night? Was it the time of night or evening when he was in a hurry to get away to feed his horses and go home? The particular time as to the accident varies from different witnesses. You will remember what they said. I think Kellough himself says that he got there some time after 5 o'clock or about half past 5 o'clock, and the accident--the witnesses do not exactly fix it at the same time, but it is for you to remember--say it was somewhere about 6, between 6 and 7 o'clock, some fixing it half past 6, and some at 20 minutes of 7, but it is for you to remember exactly the time.'

COUNSEL

J. W. McAnarney, Peter J. Donaghue, and Thos. F. McAnarney, all of Boston, for plaintiff.

Peabody, Arnold, Batchelder & Luther, of Boston, for defendant.

OPINION

SHELDON J.

The justice at the trial acted rightly in refusing the defendant's first and third requests and in submitting the case to the jury.

There was evidence that the accident was due to negligence of the defendant's driver Kellough. Indeed this hardly has been contested.

It could be found also that the plaintiff's intestate was in the exercise of as high a degree of care as properly could be expected from...