Mullen v. Springfield St. Ry. Co.
| Decision Date | 18 October 1895 |
| Citation | 164 Mass. 450,41 N.E. 664 |
| Parties | MULLEN v. SPRINGFIELD ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.B Carroll and W.H. McClintock, for plaintiff.
William H. Brooks, for defendant.
The plaintiff's intestate, Robert J. Mullen, a boy nine years and seven months old, with Joseph Rivers, another boy a little older, with whom he was not acquainted, was riding at the hind end of a grain dealer's business wagon along Chestnut street in Springfield. A single track of the defendant's electric railway was laid through the middle of the street. The driver sat on a seat at the forward end of the wagon, driving a single horse, and he had no knowledge of the presence of the boys, who got upon the wagon without the permission of anybody. The plaintiff's intestate was on the wagon when Rivers first saw it, and they afterwards sat with their backs to the driver, and their feet hanging over the tailboard. Mullen was on the left-hand side of the wagon, next the track, and there were empty boxes between the boys and the driver. As the team was going at an ordinary rate of speed, on the right-hand side of the street, it met an electric car. The distance between the curbstone and the nearest rail of the track is given by estimate as eight or ten feet. Both boys were intending to go up Franklin street, Mullen to a school which he attended, and Rivers to the house of his uncle on that street. They met the car at Greenwood street, which is the next street to Franklin street and very near it. The horse which was not much accustomed to electric cars, shied a little, but was easily controlled. Either because they were so near the place where they were to turn from Chestnut street, of for some other reason, the boys jumped out, and the driver went on, without knowing, until long afterwards that they had been upon his wagon. When they jumped, the electric car was very nearly opposite the horse's head. Rivers jumped on the right-hand side, of the wagon, and ran along to the right of the horse on the sidewalk, or between the curbstone and the wagon. Mullen jumped to the left of the wagon, went upon the track just forward of the car, and was run over and killed.
The action is brought under St.1886, c. 140, and the plaintiff contends that his intestate's life was lost through the negligence of the defendant, or the gross negligence of its servants or agents. There is hardly more than a scintilla of evidence to sustain this part of the case. To show negligence of the corporation, he relies upon the fact that there was no fender upon the car; but the accident happened on June 2 1893, and the evidence tended to show that, of the numerous corporations in the different parts of the state that had begun to run cars by electricity, the West End Street-Railway Company, in Boston, was the only one that had then used any fenders upon its cars, and the defendant offered to show that the use of fenders by that...
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