Hirrell v. Lacey

• Decision Date: 06 February 1931
• Citation: 274 Mass. 431,174 N.E. 679
• Parties: HIRRELL v. LACEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 431

174 N.E. 679

HIRRELL

v.LACEY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 6, 1931.

Exceptions from Superior Court, Middlesex County; Stanley E. Qua, Judge.

Action by Philip Hirrell, administrator, against William F. Lacey and others. Findings for plaintiff, and defendants bring exceptions.

Exceptions overruled.

J. J. Donahue and C. J. Redmond, both of Boston, for plaintiff.

F. J. Carney and J. A. Canavan, both of Boston, for defendants.

RUGG, C. J.

This is an action of tort to recover damages for the death of a boy, six and one-half years of age, alleged to have resulted from the negligence of the defendants.

There was evidence tending to show that the deceased child and his sister, about eight and one-half years old, at about half past seven on an April morning left their home on the north side of Mystic avenue in Malden and walked along a dirt and gravel sidewalk on that street about one hundred feet when they came to a driveway leading across the sidewalk into the defendants' place of business; that the sister was on the outside of the sidewalk and the deceased on her right-hand side; that the sister saw the defendants' truck on Mystic avenue about one hundred feet away traveling in the opposite direction; that she next noticed it turn into the driveway, let go her brother's hand and stepped back to save herself; that if she had tried to save him they both would have been killed; that she was a step beyond the stone roughly marking the edge of the driveway, and her brother was to her right on the sidewalk and did not see the truck; that the middle of the front of the radiator of the truck of the defendants hit her brother; that the right front wheel of the truck went over his body; that the owner of the truck and his son, the driver, were both riding to their work; that neither of them saw the children on the sidewalk and that the first they knew of the accident was when the boy was run over and his sister screamed.

The trial judge found that the driver of the truck was negligent; he stated that, in view of the tender years of the deceased and the facts that the truck approached from his side and that his sister who was holding his hand was, in a sense, between him and the truck, he was not satisfied that the deceased was negligent, and made a finding for the plaintiff. The plaintiff at the trial abandoned all claims except for the death of the decedent.

The finding of the judge that the decedent was struck by the defendant's truck on the sidewalk and not on the defendants' land was warranted by the evidence, notwithstanding the evidence tending to show that when the truck came to a stop the body of the decedent was six or eight feet inside the property line of the defendants.

The decedent was old enough to exercise some care. Plainly there was evidence enough to sustain the finding of the judge that the burden resting on the defendants of proving contributory negligence on his part had not been sustained. Eshenwald v. Suffolk Brewing Co., 241 Mass. 166, 134 N. E. 642;Forzley v. Bianchi, 240 Mass. 36, 132 N. E. 620;Mercier v. Union Street Railway, 230 Mass. 397, 403, 119 N. E. 764. He was walking on a sidewalk where he had a right to be, and he justly might rely to a considerable extent on the expectation that no one would drive a motor vehicle across that sidewalk, even at a private driveway, without giving seasonable warning and stopping if necessary in order to avoid a collision. Moreover, the decedent was in the care of his sister who might be found to be a competent custodian and to have acted throughout with due care. Direnski v. Eastern Massachusetts Street Railway, 244 Mass. 313, 316, 138 N. E. 554;McDonough v. Vozzela, 247 Mass. 552, 556, 142 N. E. 831. The case at bar is quite distinguishable on this point from the numerous cases on which the defendants rely, but it is not necessary to review them one by one for the purpose of distinguishing them.

Plainly it might have been found to be negligence on the part of the defendants to drive upon the sidewalk without observing the children and acting with due care in view of their presence. The children and the sidewalk were in plain view of the defendants. There appears to have been nothing to obstruct their view. Cairney v....