Marsland v. Murray

• Citation: 148 Mass. 91,18 N.E. 680
• Parties: MARSLAND v. MURRAY.
• Decision Date: 28 November 1888
• Court: United States State Supreme Judicial Court of Massachusetts

148 Mass. 91
18 N.E. 680

MARSLAND
v.
MURRAY.

Supreme Judicial Court of Massachusetts, Bristol.

November 28, 1888.

Exceptions from superior court, Bristol county; JAMES R. DUNBAR, Judge.

Action of tort by John W. Marsland, per pro. ami, against Raymond Murray, to recover damages for personal injuries sustained by plaintiff, and alleged to have been occasioned by a kick from a horse owned by defendant. At the trial in the superior court the jury returned a verdict for the plaintiff, and defendant filed exceptions. The facts appear in the opinion.

[148 Mass. 92]M. Reed, for plaintiff.

Cummings & McDonough, for defendant.

C. ALLEN, J.

It is not contended in behalf of the defendant, in the argument, that he was free from negligence in permitting his horse to be unharnessed and unattended upon the [148 Mass. 93]highway. See

[18 N.E. 681]

Barnes v. Chapin, 4 Allen, 444;Lyons v. Merrick, 105 Mass. 71; Goodman v. Gay, 15 Pa.St. 188. But he contends that there was no sufficient evidence to show that the plaintiff's injury was received from a kick of the horse, or that the plaintiff was himself in the exercise of due care; and these are the only questions we have to consider.

1. The evidence, if believed, was ample to warrant the jury in finding that the injury was caused by a kick of the horse.

2. It is true that a plaintiff cannot recover in an action like this, where there is nothing to show whether he was careful or negligent. Crafts v. Boston, 109 Mass. 519. But, as was said in Mayo v. Railroad Co., 104 Mass. 137, 141, the question of due care on the part of the plaintiff presents itself in two aspects,-one being whether it was consistent with due care that he was in the place of danger; the other, whether, being in such a place, he used reasonable precautions against danger. And in the case of an injury to a young child, like the plaintiff, the question becomes chiefly one of due care on the part of the person having charge of the child, in allowing it to be in the place where the injury was received. Gibbons v. Williams, 135 Mass. 333. The fact that a very young child is allowed to be upon a much-used highway, in a city, unattended, is prima facie, but not conclusive, evidence of negligence on the part of the person in charge. Gibbons v. Williams, ubi supra; Wright v. Railroad Co., 4 Allen, 283. In the present case the plaintiff was between four and five years old. The situation of the highway, the amount of its use, and the situation of the house in respect to the...