Casey v. City of MaLden
| Decision Date | 24 May 1895 |
| Parties | CASEY v. CITY OF MALDEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Augustine J. Daly, for plaintiff.
O.H. Carpenter, for defendant.
The plaintiff, a boy between nine and ten years of age, and of average intelligence, was injured by falling into a manhole of a sewer being constructed by the Metropolitan Sewerage Commissioners, acting under St.1889, c. 439. The sewer was in a public street of the defendant city, and the manhole, which was about three feet in diameter, had been left open and unguarded from 8 o'clock in the morning until the time of the accident, which was between 3 and 4 o'clock in the afternoon. The plaintiff walked backward from the house where he lived, a distance of 25 or 30 feet, looking up at a boy and a girl on the roof of the house adjoining the one where he lived, until he fell into the manhole. The mother of the plaintiff testified at the trial, but only as to the length of time the manhole was open. There is nothing in her testimony to show any care exercised by her towards the plaintiff, or that she cautioned the plaintiff in regard to it. If the boy was too young to be trusted upon the street alone, the evidence does not show any exercise of care on the part of the mother, and this would prevent his recovery. We assume, however, that a boy of average intelligence, between nine and ten years of age, may be trusted upon the street alone; and the question then is whether the judge rightly ruled that, upon the whole evidence, the plaintiff could not recover. We are of opinion that the ruling was right. The jury would not have been warranted in finding, upon the evidence, that the plaintiff was in the exercise of due care. The evidence was undisputed. The hole was in plain sight, if the plaintiff had looked. He voluntarily adopted a dangerous method of crossing a public street, and his injury was a natural consequence of his carelessness. Messenger v. Dennie, 137 Mass. 197; Id., 141 Mass. 335, 5 N.E. 283; Gay v. Railway Co., 159 Mass. 238, 34 N.E. 186. Verdict for the defendant to stand.
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