Collins v. South Boston H.R. Co.

• Decision Date: 03 July 1886
• Citation: 7 N.E. 856,142 Mass. 301
• Parties: COLLINS, Prochein Ami v. SOUTH BOSTON H.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 301

7 N.E. 856

COLLINS, Prochein Ami v. SOUTH BOSTON H.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1886

This was an action of tort for personal injuries, brought by Patrick Collins, the father and next friend of Daniel Edward Collins, against the South Boston Railroad Company, a corporation operating lines of street railway in Boston. The plaintiff, a boy four years and twenty-three days old, lived with his parents, and on the afternoon of July 29, 1882, the date of the accident, left home in company with his sister Nellie, a girl nearly eleven years of age, to go to a store near by, and while on their way home, in crossing Broadway the plaintiff was knocked or fell down, and was run over on the inward track of the defendant corporation, on Broadway by one of the defendant's cars, driven and controlled by its agents, sustaining injuries which made it necessary to amputate one arm near the shoulder, and the great toe of one foot. At the trial in the superior court before GARDNER, J there was evidence, on the part of the plaintiff, that the child Nellie was in the habit of taking care of the children including the plaintiff, and was the only one in the family to do it; that she had often taken them across Broadway; that she had attended the public schools, always passed class examinations, and went from one room to another when the other scholars did. There was also other evidence tending to show that the girl was possessed of the degree of intelligence usually found in girls of her age. One McDermott testified that he was on Broadway at the time of the accident, and saw the driver of the car leaning on the dasher in a listless attitude, looking down the street; that some one shouted, and then the driver put down the brakes, but the plaintiff was knocked down and dragged some distance by the car. One McCue, a witness for the plaintiff, testified that he saw the accident; that he saw plaintiff and his sister about to go onto the street crossing, plaintiff having hold of his sister's hand; that the two children walked together before reaching the car tracks, but when they reached the crossing the car was coming down the street at a trot, and the girl, being frightened and evidently afraid that the pole would strike her, let go plaintiff's hand and ran off. The car or the horses then struck plaintiff, knocking him down, and dragging him some distance. When the girl let go of plaintiff's hand, the pole was almost right up side of her. Other witnesses gave testimony regarding the accident substantially like that of the previous witnesses. Nellie M. Collins, sister of the plaintiff, testified that she took the best of care of the plaintiff on the day of the accident; that, when about to go over the crossing, her attention was attracted to a band car down the street, and that she did not see the car which struck plaintiff until it was very near her; that she did not hear anybody shout; that she left her brother, and went over the crossing; that she left her brother because she thought she was going to be knocked down herself. She further testified:

"I left him and ran across. I did not turn back. After I got across I turned around to catch him, [plaintiff,] and he was under the car, and I ran up and told my mother. The horse's heads, when I let go of him, were pretty close to us. We were then between the four rails. I do not know who it was I heard shout, or the direction it came from. I let go of Eddie just as soon as I heard it. I was not playing with Eddie, or fooling or playing with the other children, running around, or doing anything of that kind. I was on the cross-walk when I let go of Eddie. I cannot tell whether Eddie was knocked down by the horses or by the car."

On cross-examination she testified that she was dragging plaintiff along, and stopped between the tracks; that she thought he could get across before the car came; that plaintiff pulled away from her, and she ran away and left him between the tracks. Counsel for defendant then asked, "Now, Nellie, let me ask you whether it was not this way: Didn't you take your little brother right along in front of the horses, and then, when you found the horses right on you, drop him?" to which witness answered in the affirmative. There was other evidence by witness tending to show negligence on her part in caring for her brother. Another witness for plaintiff testified that the plaintiff and his sister were between the tracks, when the girl left her brother, on the near approach of the car, and ran across; that plaintiff started to follow, and got nearly across, when he was knocked down and run over; that the cars were going at a trot, about as fast as they usually went on that thoroughfare; and that the driver did not put on the brakes until after witness heard some one shout. A witness who was a school-teacher testified that the girl Nellie was a child of ordinary intelligence; that she had found her bright and quick about doing errands. There was evidence for the defendant tending to show negligence upon the part of the plaintiff, and on the part of the custodian of the plaintiff, the girl Nellie. The defendant asked the court to rule that on all the evidence the plaintiff was not entitled to recover, but the court declined so to rule, and submitted the case to the jury, which found for the plaintiff, and, at the request of the defendant, the case was reported to the full court.

COUNSEL

R.D. Smith and Paul West, for defendant.

H.E. Bolles and George E. Sawyer, for plaintiff.

OPINION

FIELD J.

We cannot say, as matter of law, that the parents of the plaintiff were negligent in permitting him to go upon the streets with his sister, who was then nearly 11 years old, or that the sister had not sufficient intelligence or discretion to be intrusted with the care of him. Mulligan v Curtis, 100 Mass. 572; Lynch v. Smith, 104 Mass. 52; O'Connor v. Boston & L.R. Co., 135 Mass. 352. Neither can we say that there was not evidence for the jury of negligence on the part of the driver of the car. Com. v. Metropolitan R. Co., 107 Mass. 236. The driver of a horse car in a street where there are children may well be required to manage his car with reference to all the risks that may reasonably be expected; and among these may be reckoned risks arising from the heedlessness and indiscretion of children. All the evidence in...