Murphy v. Boston Elevated Ry. Co.
| Decision Date | 04 April 1905 |
| Citation | 188 Mass. 8,73 N.E. 1018 |
| Parties | MURPHY v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thos. H. Dowd, for plaintiff.
Choate Hall & Stewart, for defendant.
The plaintiff's intestate, a boy five years and four months of age, bright, intelligent, and well developed for his years, lived on New Heath street, near Center street, in the Roxbury district. He had traveled on the street cars, and knew Center street, and knew there were two street railway tracks there upon which the cars ran frequently in both directions. He had been sent on errands before November 14 1900. On that day he was sent on an errand to Highland street, which leads off from Center street some distance southerly from New Heath street. To do the errand he must cross Center street. In attempting to do so he was run over by a car of the defendant and killed. At the place where the child left the curb to cross Center street the nearest rail was 16 feet from the curb, and the overhang of the car was 2 feet. There was nothing to obstruct his view of the car, which was approaching on a downgrade of 5 per cent. at a speed variously estimated as from 12 to 20 miles per hour. Two brewery teams, which had been moving in the same direction with the car on its track, had just swung out onto the other track to allow the car to pass them. The street was quiet with nothing to attract the boy's attention but the car and the two brewery teams. The evidence consisted of a plan and the testimony of an engineer explaining the plan; the testimony of a foot traveler, who was walking on the sidewalk near by, and saw the accident; that of the driver of the first brewery team, who does not seem to have seen the boy until after the accident; and of the testimony of the mother of the boy and of the person with whom he was living, and who had sent him upon the errand. Neither of these two witnesses last mentioned saw the accident, or knew of it until afterwards. In addition, a medical examiner testified that the boy was killed in consequence of the crushing of his skull. The court ruled that upon all the evidence the plaintiff could not recover, and the case is here upon an exception to that ruling.
The only evidence of gross negligence on the part of the defendant's servants is that as to the speed of the car and that as the car passed the brewery teams the motorman turned his head in their direction, which was to turn it away from the sidewalk, and that no gong was sounded. We assume, without so deciding, that the question whether the motorman was grossly negligent was for the jury. We are of opinion that upon the evidence the jury could have found that the person with whom the boy was living was not negligent in sending him unattended upon an errand which required him to cross Center street. Lynch v. Smith, 104 Mass. 52, 56, 6 Am. Rep. 188. Whether the ruling excepted to was right depends upon whether it could be found as a reasonable inference from the evidence that the plaintiff had sustained the burden of proving that the boy, in attempting to cross the street at the time and place and in the manner in which he did attempt it when he left the curb, was in 'the...
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