Eaton v. S.S. Pierce Co.

• Decision Date: 16 November 1934
• Citation: 192 N.E. 831,288 Mass. 323
• Parties: EATON v. S. S. PIERCE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 323

192 N.E. 831

EATON

v.S. S. PIERCE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 16, 1934.

Exceptions from Superior Court, Suffolk County; Morton, Judge.

Action by Julia Ann Eaton, p. p. a., against the S. S. Pierce Company. Verdict for plaintiff in the sum of $2,000, and defendant brings exceptions.

Exceptions overruled.

R. B. Coulter, of Boston, for plaintiff.

E. T. Doherty, of Boston, for defendant.

RUGG, Chief Justice.

This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff as the result of negligent operation of an automobile owned by the defendant and operated by its agent. The plaintiff at the time of the accident was three years and nine months old, and was unable to testify. The accident occurred in the driveway beside the house where the plaintiff lived with her family. The uncontradicted evidence tended to show these facts: The house is set back from the street about forty-five to fifty feet. A dirt and gravel driveway runs from the street by the side of the house. A wire fence separates the driveway from the lawn of the adjoining premises. The accident happened about half past two on a September afternoon. The plaintiff was playing in the yard of her home as was her custom. She was a quiet, well behaved child, and very intelligent. No one saw the accident, but a witness who had been raking grass on the lawn left the plaintiff playing near the house and along the edge of the driveway; she was making figures in the gravel. A truck of the defendant drove into the driveway to deliver an order of groceries at the house of the plaintiff's father. The driver testified that he saw a little girl when he drove into the driveway; that after making the delivery he went part way back to put an empty box into the truck; that at that time there was nobody in the driveway; that he immediately got into his truck and began to back; that he did not blow his horn and did not know he had struck anybody until he heard the screams; that he had not gone more than ten feet when he was conscious of the accident. The truck of the defendant was not covered but was open at the sides, quite high, and had a top on it. The accident happened about twenty-five feet from the sidewalk. The driver of the truck was familiar with the premises. The driver testified that he could tell that before the accident the child did not come from the lawn bordering the driveway nor...