Messenger v. Dennie

• Decision Date: 18 March 1886
• Parties: MESSENGER, per Prochein Ami, v. DENNIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 335

5 N.E. 283

MESSENGER, per Prochein Ami,

v.DENNIE.

Supreme Judicial Court of Massachusetts.

Filed March 18, 1886.

Tort to recover damages to the plaintiff from the alleged negligent driving of the defendant, and is the same case that has been once before to the supreme judicial court, (reported in 137 Mass. 197.) After that opinion, the case came again for trial before a jury in the superior court. The presiding justice, who heard the case at the former trial, suggested that the opening left some matters uncertain, especially as to the consent of parents to the boy's riding on sleighs under certain circumstances, which was testified to at a former trial; and said that if the only new testimony to be introduced was that of the plaintiff, a boy, (who was not a witness before,) he was prepared to dispose of the case; and, in reply to a direct question by the court to plaintiff's counsel, whether “the evidence as to the consent of the parents and all the circumstances will be the same as before,” the counsel replied, “substantially.” The presiding justice being then of opinion that upon the opening and statement of counsel, he was bound so to rule, under the decision above referred to, held that the plaintiff could not maintain his action, and directed a verdict for the defendant, which was rendered. The case, by consent of parties, was reported to the supreme judicial court. The material facts appear in the opinion.B. Wadleigh, for plaintiff.

C.F. Kittredge and M. Williams, for defendant.

BY THE COURT.

When this case was before the court at a former term, it was decided that, upon the facts there appearing, the plaintiff was not entitled to recover. Messenger v. Dennie, 137 Mass. 197. The facts offered to be shown at the second trial do not in any material particular differ from those shown in the first trial. The plaintiff was engaged in the dangerous sport of riding upon the runners of a sleigh in the public streets. He suddenly left the runner of the sleigh on which he was riding, while it was in motion, in front and within a few feet of the sleigh driven by the defendant, who was driving at a moderate rate of speed. If, as is now claimed, the plaintiff saw the defendant's team approaching, it does not help his case. He thoughtlessly and imprudently put himself in a position of danger, and upon the facts his injury is attributable to his own carelessness, and not to any negligence of the defendant. Judgment on the...