Giaccobe v. Boston Elevated Ry.

• Decision Date: 17 June 1913
• Parties: GIACCOBE v. BOSTON ELEVATED RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 224

102 N.E. 322

GIACCOBE v. BOSTON ELEVATED RY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1913

COUNSEL

Wm.

P. Meehan and Chas. H. Donahue, both of Boston, for plaintiff.

Fletcher Ranney, Wesley E. Monk, and Thos. Allen, Jr., all of Boston for defendant.

OPINION

MORTON J.

It is not contended that the plaintiff was not rightfully in the street. He was seven years and eight months old at the time of the accident, and for two years had been crossing the tracks four times daily, on his way to and from school unattended 'except that sometimes the neighbors' children went with him,' and he was of average intelligence. Neither do we understand the defendant to contend that there was no evidence of negligence on the part of the motorman. His view was unobstructed and that, together with the speed at which it could be found that he suffered the car to run and his failure to sound the gong or warn the plaintiff until he was only fifteen or twenty feet away from him, warranted a finding that he was negligent. Breen v. Boston Elev. Ry., 211 Mass. 519 98 N.E. 511.

The question of difficulty is that relating to the plaintiff's due care. But we think that there was evidence warranting a finding in his favor. He was required to exercise only such care as naturally would be expected of a child of his age and experience. He testified in part: That 'he started from the curbstone, then got halfway between the first rail and the curbing and looked up and saw [the] car coming down slow, and thought he had a chance to get by. That he walked on to the other rail going down toward Sullivan Square, looked down to see if any cars were coming down, heard the bell ring and looked up the other way and saw a car and tried to get back but couldn't; the car struck him. That when he heard the bell he looked up and was scared. * * * When he first looked up he was halfway between the curbstone and the rail of the track on which cars go out from Sullivan Square. That when at that point he saw the car coming off the bridge, that it was then going slow. That when he looked down toward Sullivan Square he was in the middle of the inbound track, * * * the track on which he got hurt. * * * That the bell rang loud when he first heard it. That he then tried to get back; that he took a step back. That he was walking when crossing the street and did not run at all. That when he got halfway over as described, he went a little faster, still walking.' There was evidence tending to show that the bridge referred to was upwards of 250 feet away; that the grade from the bridge was a downgrade; that after the car passed the bridge it began to go faster, and kept going faster until, as one witness described it, it was 'going very fast,' and as another witness said 'the car was coming down the hill at...