Minsk v. Pitaro

• Decision Date: 15 September 1933
• Citation: 284 Mass. 109
• Parties: EDWARD MINSK v. JOSEPH PITARO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 109

EDWARD MINSK v. JOSEPH PITARO.

Supreme Judicial Court of Massachusetts, Plymouth.

September 15, 1933

January 9, 1933.

Present: RUGG, C.

J., PIERCE, WAIT DONAHUE, & LUMMUS, JJ.

Negligence, Motor vehicle, Due care of person in charge of child, Proximate cause. Evidence, Presumptions and burden of proof. Practice Civil, Appeal, Findings by judge.

The backing of any vehicle entails more or less limitation on the driver's view of the area to be traversed and thus requires corresponding vigilance on his part to avoid causing injury to persons who are known to be, or likely to be, in that area, whether the vehicle is being backed on a public street or on private land. Per DONAHUE, J.

At the hearing in a district court of an action of tort for personal injuries sustained by a child about three years and eight months of age while riding a tricycle on a concreted area in the yard at the side of the house where he lived, the judge at the request of the defendant ruled that "A child of the age of the plaintiff is presumed as a matter of law not to posses sufficient discretion to exercise due care for himself." The plaintiff did not object to the ruling, and the action was tried and decided on the theory of law that the plaintiff in the circumstances shown was incapable of exercising any care for his own safety. Upon appeal from an order by an appellate division dismissing a report by the trial judge who found for the plaintiff, it was held, that this court upon the record was not required to pass upon the correctness of the quoted ruling. In the circumstances above described the plaintiff was not aided by G. L.

(Ter. Ed.) c. 231, Section 85.

The report of the trial judge to the Appellate Division in the action above described included the statement that it contained "all the evidence material to the questions reported." It contained no evidence to indicate that any one was immediately in charge of the plaintiff at the time of his injury, or to show when, last before that event, any custody or supervision had been exercised over him. In it was recited evidence in substance that the area where the plaintiff was when injured extended from a public way to a repair shop conducted by the plaintiff's father at the rear of the premises; that a part of it was available for use by drivers of automobiles who had occasion to go to and from the repair shop, and that it was so used "quite frequently"; that the defendant drove his automobile to the shop to make inquiry as to repairs and backed out after looking in the rear and not seeing the plaintiff; that he had seen children around when he drove in; that he "backed out at an angle," fast, and not "like the rest of the machines"; and that he struck the plaintiff forty feet from the shop. There was no evidence that he looked behind after he started to back. There was a general finding for the plaintiff but no specific finding respecting due care of the plaintiff's parents or custodian or that the plaintiff himself did or did not do anything which would be deemed dangerous or careless if his movements were at the time directed by a prudent adult person. At the request of the defendant, the judge ruled that the burden was on the plaintiff to show that his custodian was in the exercise of due care. Held, that

(1) A finding that the defendant was negligent was warranted; (2) There being no evidence of use of the area where the plaintiff was injured comparable to the use ordinarily made of a street, it was proper for the trial judge to refuse to rule that "The presence of the plaintiff unattended on the driveway involved in this accident is prima facie evidence of negligence of the person having custody of the plaintiff";

(3) It also was proper to refuse a ruling that "If the plaintiff's parents permitted him to play on the driveway unattended, then as a matter of law the parents must be found to have been negligent";

(4) The judge erred in denying a request that he rule that there was "no evidence that the custodian of the plaintiff was in the exercise of due care";

(5) If the judge had made the finding, which the evidence warranted, that the plaintiff had sustained the burden of proving that he did nothing which would be deemed dangerous or careless if his movements had been directed by an adult person in charge who was of ordinary and reasonable prudence, the general finding for the plaintiff would have been warranted; but, the record showing no such specific finding, this court on the report was unable to say whether the general finding for the plaintiff was based on such a finding or on a conclusion that the plaintiff's parents or custodian had exercised due care, which conclusion was not justified by the evidence reported;

(6) In the circumstances it could not be said that the error in refusing to rule that there was "no evidence that the custodian of the plaintiff was in the exercise of due care" was not prejudicial;

(7) The order of the Appellate Division was reversed and the case was remanded to the District Court for a new trial.

TORT. Writ in the District Court of Brockton dated November 25, 1931. In the District Court, the action was heard by Thorndike, J. Material evidence and rulings and findings by the trial judge are described in the opinion.

The defendant asked for rulings, which, with the action of the judge thereon, were as follows:

"1. Plaintiff has failed to prove that the defendant was negligent." "Refused. I find on the facts that the defendant was negligent."

"2. A child of the age of the plaintiff is presumed as a matter of law not to possess sufficient discretion to exercise due care for himself." "Granted as a matter of law."

"3. The presence of the plaintiff unattended on the driveway involved in this accident is prima facie evidence of negligence of the person having custody of the plaintiff." "Refused. I take into consideration the presence of plaintiff unattended in the driveway in connection with all the other evidence."

"4. If the plaintiff's parents permitted him to play on the driveway unattended, then as a matter of law the parents must be found to have been negligent. Sullivan v. Chadwick, 236 Mass. [130 at page] 131." "Refused on the ground that the facts in this case were not the same as in the Chadwick [sic] case as to the place in which the child was left to play and the length of time it was left alone."

"5. Custodians of children are not presumed to have been in the exercise of due care and are not aided in this respect by the `due care statute.'" "Granted."

"6. The burden is on the custodian of the plaintiff to show that said custodian was in the exercise of due care." "Granted."

"7. There is no evidence that the custodian of the plaintiff was in the exercise of due care." "Refused."

"8. On all the evidence the custodian of the plaintiff was negligent and such negligence is imputed to the plaintiff." "Refused."

The judge found for the plaintiff in the sum of $450 and reported the action to the Appellate Division for the Southern District. The report contains the statement: "This report contains all the evidence material to the questions reported."

The report was ordered dismissed and the defendant appealed.

F. P. Hurley & J.

E. Norris, for the defendant, submitted a brief.

M. Shapira, for the plaintiff.

DONAHUE, J. The plaintiff, a boy about three years and eight months old, was injured while riding a tricycle on a concreted area in the yard at the side of the house where he lived. This area was about twenty-five feet wide, and extended from the street to a repair shop conducted by the plaintiff's father at the rear of the premises. The defendant while backing his automobile from the repair shop to the street struck and injured the plaintiff. The case was heard by a judge of a district court who found for the plaintiff and at the request of the defendant reported it on rulings made and refusals to rule as requested to the Appellate Division where an order was made for the entry of "Report dismissed." The defendant has appealed to this court.

The defendant drove upon the premises to make inquiry as to repairs on his automobile and stopped in the driveway of the repair shop in such position that it was necessary for him to back out. Before starting to back he looked to the rear but did not see the plaintiff. There was evidence from which it might have been found that the defendant...