Miller v. Flash Chem. Co.

• Decision Date: 25 May 1918
• Citation: 230 Mass. 419,119 N.E. 702
• Parties: MILLER v. FLASH CHEMICAL CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 419

119 N.E. 702

MILLER

v.FLASH CHEMICAL CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1918.

Exceptions from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Actions by Meyer Miller and by Matilda Miller, by next friend, against the Flash Chemical Company. Verdicts for plaintiffs, and defendant excepts. Exceptions overruled.

Vahey & Casson, of Boston, and Fitzgerald & Higgins, of Providence, R. I. (Philip Mansfield, of Boston, of counsel), for plaintiffs.

Sawyer, Hardy, Stone & Morrison, of Boston (Edward C. Stone, of Boston, of counsel), for defendant.

CARROLL, J.

These are two actions of tort-one for personal injuries received by Matilda Miller (hereinafter called the plaintiff), a child six years of age, on June 15, 1914, in Providence, R. I., through the alleged negligence of the defendant's servant in operating an automobile truck; the other action is by her father for consequential damages. Verdicts were returned for the plaintiffs.

There was evidence that the plaintiff never went alone to or from school, but was always accompanied by her sister Rose, eleven years of age. On the day of the injury Rose remained in school and asked Anna Zucca, a child two years older than the plaintiff, ‘to take Matilda home.’ It was agreed that Anna, if present, would testify:

‘We came along North Main street together and got off the sidewalk. * * * I let go of her hand after we walked a few steps on the street; * * * when I let go of her hadn I started to run, and I thought she would run after me. * * * I did not know that anything happened to her until I had got home.’

There was evidence that when the plaintiff started to cross from the easterly to the westerly side of the street it was clear of vehicles except the defendant's automobile, and the only people crossing the street were the two children; that the automobile was forty feet away, ‘coming down fast’ in the middle of the street and going in the direction of Pawtucket; that the plaintiff was struck by the forward left-hand wheel when about four feet from the sidewalk on the westerly side of the street.

[4] A child may be so young in years and incapable of exercising care that it is negligence on the part of her parents or custodian to permit her to be alone on the street; and if, when unattended, the child is injured by the negligence of a third person, when an adult exercising ordinary care would not have been hurt, she cannot recover-the negligence of the person having her in charge being imputed to her. Casey v. Smith, 152 Mass. 294, 25 N. E. 734,9 L. R. A. 259, 23 Am. St. Rep. 842. But even if the parents, or those having the control of such a child, are negligent in allowing her to go unattended upon a public highway, and she did nothing which would be considered careless if her movements were directed by an adult person of ordinary prudence, she can recover damages for an injury sustained by the negligence of another. Wiswell v. Doyle, 160 Mass. 42, 35 N. E. 107,39 Am. St. Rep. 451. It cannot be said as matter of law that a child six years of age is too young to be alone and unattended upon the highway and to pass from one side of a street to the other, while on her way to and from school. This is a question of fact for the jury to decide. See McDermott v. Boston Elevated Railway, 184 Mass. 126, 68 N. E. 34,100 Am. St. Rep. 548. If the plaintiff was old enough to care for herself and the defendant negligently injured her, she has the right to recover for her injuries, provided it was found she exercised that degree of care and caution which was to be expected of a child of her years. Collins v. South Boston Railroad, 142 Mass. 301, 7 N. E. 856,56 Am. Rep. 675; McDermott v. Boston Elevated Railway, supra.

[5] There was evidence that the plaintiff never went alone to or from school. Even if the jury believed this, they could find she was capable of caring for herself and used the common care of a child six years of age. McNeil v. Boston Ice Company, 173 Mass. 570, 54 N. E. 257, and cases cited. Cases like Messenger v. Dennie, 137 Mass. 197, 50 Am. Rep. 295, and Id.,141 Mass. 335,...