McDermott v. Boston Elevated Ry. Co.
| Decision Date | 02 September 1903 |
| Citation | 184 Mass. 126,68 N.E. 34 |
| Parties | McDERMOTT v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis
P. Curran, for plaintiff.
E. P Saltonstall, for defendant.
At the time of the accident the plaintiff, a child 6 1/2 years of age, was on the crosswalk at the intersection of Highland avenue with Cherry street, in the city of Somerville; and as she was passing over the track of the defendant one of its care struck her. The defendant offered no evidence at the trial, but at the close of the plaintiff's case asked the court to rule that she was not in the exercise of due care and could not recover. The court so ruled, and the case is here on her exception to the ruling.
The plaintiff did not testify, but from the evidence set out in the exceptions it appears that she was on her way to school with other children. The schoolhouse, known as the 'Burns School,' was on Cherry street, which ran westerly from the westerly side of Highland avenue, and to reach it the plaintiff, and other children from the same section of the city attending that school, would be obliged to pass over Highland avenue at the corsswalk that ran from the east side of the avenue to Cherry street. While walking with the other children, some of whom preceded her, as she came up to the crosswalk through which ran the track of the defendant, and when within six or seven feet of the rail, the car that struck her was about 140 feet distant, and in full view from the crossing. At that time the conductor in charge of the car, which was running at 'a pretty good rate of speed,' first saw her, and, while it would be obvious to any one in the motorman's place that children were in the street and passing over the crossing, the going was not sounded until the car was within 10 or 15 feet of the plaintiff, who does not appear to have either seen it coming or heard the going. The children in front of her kept on walking over the track. She followed, and as she stepped on the rail the accident happened.
It cannot be held as a matter of law that for a child 6 1/2 years of age to pass over a crosswalk that leads from one side of a street to the other, while on her way to school and through which runs the track of a street railway, is of itself negligence. The question is narrowed to the inquiry, ought the plaintiff, when she could have seen the car, to have looked to see if one was coming, and also to have listened for the sound of the gong before attempting to cross the street, and, she having failed to do so, must therefore be held to have been guilty of such contributory negligence as bars her recovery?
In the cases that from time to time have been before this court in which the due care of children of tender years, while travelers upon the public ways, has been discussed, it has been said that the child 'is to be held to the exercise of that degree of care which may reasonably be expected of children of his age, or which children of his age ordinarily exercise.' Collins v. South Boston Railroad, 142 Mass. 301, 314, 7 N.E. 856, 56 Am. St. Rep. 675, and cases cited. The principle is clearly defined, but the difficulty arises in its application to the facts of different cases, and often becomes a matter of great perplexity and doubt to determine if the child is of such tender years that the rule cannot be held to govern, and the doctrine of imputed negligence as applied to the conduct of parents, or those intrusted with his care, must be invoked. A child may be so young in years that if allowed by his parents, or those having custody of his person, to go unattended on the highways, such conduct on their part would unhesitatingly be condemned by the average judgment of men as careless, and to be imputed to the child if he should thereby be injured. It was accordingly held that to allow a child 2 1/2 years old, unattended, to pass across a public street in a city, and which was traversed by a horse railroad, was prima facie evidence of want of due care of those having him in charge. Wright v. Malden & Melrose Street Railroad Co., 4 Allen, 283, 289. See Butler v. New York, New Haven & Hartford Railroad Co., 177 Mass. 191, 58 N.E. 592; also Cotter v. Lynn & Boston Railroad Co., 180 Mass. 145, 61 N.E. 818, 91 Am. St. Rep. 267.
But in Lynch v. Smith, 104 Mass. 52, 6 Am. St. Rep. 188 and in Hayes v. Norcross et al., 162 Mass. 546, 39 N.E. 282, the...
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