Marsland v. Murray
| Decision Date | 28 November 1888 |
| Citation | 148 Mass. 91,18 N.E. 680 |
| Parties | MARSLAND v. MURRAY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M. Reed, for plaintiff.
Cummings & McDonough, for defendant.
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 highway. See 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 highway, are not disclosed. The plaintiff appears to have been under the care of his mother, who testified that she saw him a few minutes before the injury; that he was in the front room at the time; that he had been in the house nearly all of the afternoon until then; that he ran out for a few moments, and came right back; that she did not let him go out; that she was nursing a baby, and the plaintiff walked into the back room, and was gone only a minute or two, when she ran to the door, and saw him covered with blood. The father also testified that he left the plaintiff at home with his wife and some other persons; was gone from his house but a short time,--five minutes; and that when he returned the plaintiff had been injured. Upon this evidence, we cannot say, as matter of law, that the mother did not exercise due care to prevent the child from escaping from the house and going alone upon the...
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