Norris v. Anthony
| Decision Date | 27 November 1906 |
| Citation | 193 Mass. 225,79 N.E. 258 |
| Parties | NORRIS v. ANTHONY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Milton Druce, for plaintiff.
J. W Cummings and C. R. Cummings, for defendants.
The defendants contend that there was contributory negligence upon the part of the grandmother who had the care of the child, that Bly, the driver of the team, was not negligent and that there was no evidence that at the time of the accident he was acting as the servant of the defendants. Upon each of these three points the case is very close and the evidence such that a finding for the defendants upon each of them might well have been expected.
1. As to the care exercised by the custodian. She testified that 'it was around 2 o'clock and the child was in my care, and I had occasion to go to the clothesline to ascertain if I had a few things dry that I needed, and I took the child with me, and it was a lovely day, and I left him inside the gate and then the next minute I heard a cry and I saw the child lay in the road and the man running to pick it up.' The man was Bly, who had alighted from his team and had reached the child. There was evidence that the child had been across the street and was returning at the time of the accident; and further that he had been playing on the other side of the street 'five or ten minutes' before he attempted to recross the street. While it is true that the mere presence of the plaintiff upon the street unattended was prima facie evidence of the negligence of the grandmother (Gibbons v. Williams, 135 Mass. 333), still, if the jury believed the grandmother, they may have found that she had only temporarily lost sight of the child under circumstances which reasonably justified her in doing so and in thinking no harm would come to him; and that in all she did or omitted to do she was reasonably careful. Such a finding was warranted by the evidence. See Walsh v. Loorem, 180 Mass. 18, 61 N.E. 222, 91 Am. St. Rep. 263, and cases there cited.
2. As to the negligence of Bly, the driver of the team. Delia Nelms, called by the plaintiff, testified that she was looking out of the window in the building where the plaintiff lived, and saw the wagon pass at a walk; that the plaintiff came from a yard on the other side of the street, walking 'not straight across the road but in a side line' that the wagon was about in the middle of the street; that as the wagon went by 'the back wheel furthest away from her' struck the child and the child fell on the further side of the wagon from her; that when the team struck the child Bly's head was turned, looking behind him to the north on the side farthest from her (which apparently was in the direction of the place where the child was when hurt) and that there were no other teams 'around there.' On cross-examination she said that she did not see the wagon strike the child or run over it; that the team was going south, and that she 'heard the driver holler,' and that the plaintiff then fell. Edward Nelms, a boy 16 years old, called by the defendants, testified that the child had been playing at a watering trough on the opposite side of the street from his home; that the witness told him to go away; that the child started to go across the street, and when he got 'to about a foot from the wagon, the driver hollered and the child fell backwards in the street.' Bly, also called by the defendants, testified that he was driving down the street 'walking his horse, looking in the direction he was going; that he first saw the child when it came out on to the street about six inches from the hub of his front wheel; that he hollered to the child and it fell over; that he did not strike the child or run over it.' On cross-examination he said that he first saw the child when it 'loomed right up' about six inches from the hub of the wheel; that this was the front wheel; that there were no other teams about there and no other persons except one Thornber and some boys. He further said that before he saw the child, which appeared on the east side of the team, he saw Thornber on the west side and spoke to him; that in thus speaking he turned his head around; that it was 'fifty feet or more after he spoke to Mr. Thornber that he saw the child'; that he saw some boys standing at the watering trough which was upon the other side of the street; that he had passed the watering trough; that when he 'hollered' the child fell, and that he 'jumped right out and picked the...
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