Murley v. Roche

• Decision Date: 21 February 1881
• Citation: 130 Mass. 330
• Parties: Michael Murley v. Francis Roche
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 330

Michael Murley v. Francis Roche

Supreme Court of Massachusetts

February 21, 1881

Suffolk. Tort for personal injuries occasioned to the plaintiff, a boy under seven years of age, by being run over by a wagon driven by the defendant's servant. Answer, a general denial. Trial in the Superior Court, before Dewey J., who allowed a bill of exceptions in substance as follows:

The plaintiff offered evidence tending to show that, on the day of the accident, he was sitting on the sidewalk of Cherry Street, in Boston, about two or three feet from a picket fence bordering on the street, not far from his residence and was playing there by himself; and that, while he was sitting there, the defendant's horse and wagon managed by the defendant's servant were driven upon him and caused the injuries complained of.

There was also evidence tending to show that the street, which was in a remote part of the city, was forty feet wide; that there was no sidewalk in the same, but the street was level from side to side; that the street was rough and gravelly, and the sidewalk, so called, was not defined or distinguishable from the rest of the street, and the part usually travelled by foot passengers was not more than a foot or a foot and a half wide, measuring from the fence; that there was nothing to prevent teams from passing from side to side of the street and that the whole of the street was used alike by teams and foot-passengers.

The evidence as to the character and condition of the sidewalk, as to being the same as the rest of the street, was controverted by the plaintiff's witnesses, and this question was submitted to the jury. There was evidence tending to show that the elder brother of the plaintiff was about five or six feet from him, and saw the defendant's horse and wagon coming, but gave no warning either to the plaintiff of their approach and his danger, or to the driver of the position of the plaintiff; that the driver of the team was driving at a moderate pace, and carefully, and did not see the plaintiff until an instant before the accident, and until it was too late to prevent it; and that he stopped his horse immediately upon seeing him, and the front wheel of the wagon only passed over the plaintiff.

The judge instructed the jury fully as to the rights of travellers with teams and persons on foot in the public highways; that persons on foot, in passing over or across the way travelled by teams, were bound to exercise all necessary care to avoid said teams; that, if they were negligent in that respect and were injured, they could not recover; that persons passing with teams over that part of the highway used for travel with teams should exercise all the care reasonably necessary not to interfere with or injure foot-passengers crossing over or across that part of the highway; that if, owing to their negligence, the foot-passenger, being in exercise of due care, was injured, the party passing with the team would be liable; and that the plaintiff could not recover, unless, at the time of the injury, he was in that part of the highway where it was then proper for him to be, and was in the exercise of due care.

The defendant requested the judge to instruct the jury as follows: "If the plaintiff was sitting on the sidewalk, and the sidewalk was a part of the street over which both teams and foot-passengers passed, he was negligent, and cannot recover."

The judge declined so to instruct the jury, but instructed them as follows: "If the boy was sitting on a sidewalk which was clearly defined and...