Gibbons v. Williams

• Decision Date: 10 September 1883
• Citation: 135 Mass. 333
• Parties: Michael Gibbons, administrator, v. Julius Williams
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 333

Michael Gibbons, administrator, v. Julius Williams

Supreme Court of Massachusetts

September 10, 1883

Argued October 25, 1882

Bristol. Tort, for personal injuries occasioned to the plaintiff's intestate, a child nineteen months old, by being run over by an ice-cart, driven by the defendant's servant, in a public highway in Taunton. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions in substance as follows:

The plaintiff introduced evidence tending to show that his house was within thirty or forty feet of the highway, with no fence separating it therefrom; that the highway was about a mile from the Court House, was well built and considerably travelled; that it was about forty feet wide, without any distinctive lines of sidewalk; that there were no houses within three or four hundred feet of the plaintiff's house; that the line of travel was in about the centre of the way; that the child was alone in the road about ten feet out from the sidewalk and unattended; that the child had been left for a few moments by the mother, who had the care of it in the front room of the house, where were another child some ten years of age, and a neighbor, then making a call at the house; that the mother stepped into the next room to do some work about her supper; that in the course of five or six minutes she went to the front door, which had been left open, the door from the front room into the entry having been also left open, looked out, and saw her child lying in the road, about ten feet from the line of the highway, and making some attempt to get up; that she ran to the child, took it up, and found the child to be badly injured; that at the time the child was lifted up, she saw the defendant's ice-cart about one hundred and fifty feet up the road; that her daughter ran after the ice-cart, and told the driver he had run over her little sister; that the driver was then reading a newspaper, and the reins were hitched up to the cart over the driver's head, passing down through the driver's hands, and the horses were walking. There was also evidence tending to show that no other carriage passed by the child, though this was in controversy. There was no evidence from any eyewitness of the injury to the child.

The defendant introduced some evidence, but none that affected the question of the care of the child, except that the driver of the ice-cart testified that he did not see the child, and was not aware that he had run over anything.

The plaintiff asked the judge to instruct the jury as follows: "1. If the child strayed upon the street without any fault of its mother, and the injury to the child happened from want of care of the defendant's servant, the plaintiff is entitled to recover. 2. If the defendant's servant might by proper care have avoided the accident, and did not, the action may be maintained, even if the child was improperly there, and was incapable of taking care of itself, if the mother was not in fault."

The judge declined to give these instructions, and gave the following instructions, as requested by the defendant "1. To suffer a child of the age of nineteen months, without using all due preventive care, to wander out of the house, and into and upon a public and frequented street, is negligence. 2. It is culpable negligence, and violation of parental duty and care, to suffer a child of the age of nineteen months to be upon a public and frequented street, without any care taken to prevent the same. 3. In this case, if the mother of the child, in whose care it had been left, went into another room to attend to other duties, without providing for the care and protection of the child in her absence, with the outer door of the house open, and, during said absence, the child wandered into the street and was there found injured, and if there is no evidence of the way and manner in which it was injured by a passing vehicle, the plaintiff is not...