Eshenwald v. Suffolk Brewing Co.

• Decision Date: 15 March 1922
• Citation: 241 Mass. 166,134 N.E. 642
• Parties: ESHENWALD v. SUFFOLK BREWING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 166

134 N.E. 642

ESHENWALD

v.SUFFOLK BREWING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 15, 1922.

Exceptions from Superior Court, Suffolk County; George A. Sanderson, Judge.

Action of tort by Henry Eshenwald by his next friend, agaisnt the Suffolk Brewing Company, to recover for personal injuries received by plaintiff, a boy 4 years 11 months old on the date when the injuries were received. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Defendant's exception was to the refusal of the court to direct a verdict. Plaintiff's mother testified that she took plaintiff to a playground, a short distance from her home and on the same street, and left him there; that when she left her home for the purpose of going to the playground for him he was crossing an intersecting street, going towards defendant's brewery; that a team was backing up to the brewery at the time, and the wheel ran over one of his feet and knocked him down; that he was walking on the sidewalk, and did not touch or try to climb on the wagon. There was no other evidence as to what plaintiff was doing when struck by the wagon; defendant's evidence being that he was not injured at or about the brewery at all.Arthur K. Reading, of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston, for defendant.

PER CURIAM.

There was evidence to support a finding that the plaintiff, a boy 4 years and 11 months old, on November 8, 1918, while returning alone to his home from a playground, where he had been taken by his mother, was walking on the sidewalk on Columbia Road in Boston and was injured by a wagon backing up to the brewery of the defendant; the curbing of the sidewalk being of such conformation that wagons could be backed up to the doors of the brewery.

The child was where he had a right to be and apparently in a place of safety on the sidewalk. It might have been found that he did nothing which would be deemed careless if his movements had been directed by an adult of reasonable prudence. McNeil v. Boston Ice Co., 173 Mass. 570, 54 N. E. 257. The plaintiff might himself have been found to have been in the exercise of due care. Sullivan v. Chadwick, 236 Mass. 130, 134, 127 N. E. 632;Forzley v. Bianchi, 240 Mass. 36, 132 N. E. 620.

There was evidence to the effect that the wagon which was backed upon the plaintiff was loaded with bottles and was marked ‘Suffolk Brewery Co.,’ and that wagons, such as that wagon was...