Charette v. Burke

• Decision Date: 25 May 1938
• Citation: Charette v. Burke, 300 Mass. 278, 15 N.E.2d 194 (Mass. 1938)
• Parties: ERNEST CHARETTE v. CLARA A. BURKE. SAME v. WALTER L. HUNT.
• Court: Supreme Judicial Court of Massachusetts

300 Mass. 278

15 N.E.2d 194

ERNEST CHARETTE v. CLARA A. BURKE. SAME v. WALTER L. HUNT.

Supreme Judicial Court of Massachusetts, Worcester.

May 25, 1938

September 28, 1937.

Present: RUGG, C.

J., FIELD, DONAHUE & QUA, JJ.

Negligence, Due care of person in charge of child.Evidence, Relevancy.

Evidence warranted a finding that the parents of a child twenty-two months of age exercised due care for his safety as to automobiles although they left him unattended on the front walk on their premises for a few seconds.

Testimony by a father that, before temporarily leaving his child twenty-two months of age unattended on the front walk of his premises he told him to wait where he was, was admissible on the question of his conduct as custodian.

TWO ACTIONS OF TORT.Writs in the District Court of Fitchburg dated December 16, 1935.

On removal to the Superior Court, the actions were tried before Whiting, J.There was a verdict for the plaintiff in each action in the sum of $4,000.The defendants alleged exceptions.

J. C. McDonald, (M.

J. Rubin with him,) for the defendants.

A. A. Gelinas, for the plaintiff.

DONAHUE, J.The plaintiff when twenty-two months old was struck and injured on a public highway by an automobile owned by the defendant in the first case and operated by the defendant in the second case.The cases were tried together before a jury and it was agreed that if the jury found for the plaintiff in the case against the operator, it should also return a verdict for the plaintiff in the action against the owner.

After a verdict against each defendantthe cases are here on exceptions to the refusal of the judge to allow motions for directed verdicts for the defendants and to the admission of certain testimony.It is now conceded by the defendants that the evidence warranted the jury in finding the defendants guilty of negligence.

The morning of August 27, 1935, was dry and sunny and the plaintiff's mother allowed him to go out of the house and across the street in charge of his thirteen year old sister.It was a thickly settled neighborhood and many children were out of doors, some were on the sidewalks and some on the street.Later the plaintiff was under the care of an eight year old brother who at some time after ten o'clock brought the plaintiff back across the street to a walk on the premises where they lived.The plaintiff's father was then sitting on the top piazza step and the brother relinquished the care of the plaintiff to the father.The plaintiff's mother came to the window and suggested that the father get a "cookie" for the plaintiff as he had not eaten much at breakfast time.The father went into the house to carry out that suggestion.

Before doing so he looked up and down the street and saw no automobile approaching.He told the plaintiff to wait where he was while he went into the house to get him a "cookie."Before the father had time to accomplish that purpose and within a few seconds after entering the house he heard a scream and, rushing out, saw the plaintiff on the street about three feet from the curb, between the two left wheels of the automobile owned by one defendant and operated by the other defendant.

The operator of the automobile testified that he had been driving the automobile on his right side of the street as he approached the scene of the accident and saw some boys in the street ahead of him that they were "tormenting" him and he turned the automobile to his left, that is, toward the side of the street where the plaintiff's home was located; and that he continued to look at the boys and did not see the plaintiff until after he was struck and was under the automobile.The plaintiff's mother, who was in the kitchen engaged in her household duties, saw the plaintiff when he was left by his brother on the walk leading to the piazza and "had her eye on him" while the father was coming into the house, but had turned away while directing her husband where to find the "cookie" which he sought.

In the...