Pinto v. Brennan

• Decision Date: 06 January 1926
• Citation: 150 N.E. 86,254 Mass. 298
• Parties: PINTO v. BRENNAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 298

150 N.E. 86

PINTO

v.BRENNAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 6, 1926.

Exceptions from Superior Court, Middlesex County; Frederick Lawton, Judge.

Action of tort by Roy A. Pinto, per prochein ami, against Andrew J. Brennan, to recover for injuries by city owned automobile, driven by defendant, a foreman in its street department. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

F. M. Ryder, of Boston, for plaintiff.

F. J. Carney and P. E. Troy, both of Boston, for defendant.

SANDERSON, J.

The plaintiff, a boy two years and nine months old, was injured on Albany street in Cambridge by an automobile owned by the city and driven by the defendant, a foreman in its street department. The accident occurred near the center of the street about one hundred feet from Portland street, toward which the automobile was moving. The defendant testified that his attention was first directed to the boy by a man who was riding with him when the boy was about three feet from the automobile. This statement later was modified when he said he must have seen the boy when more than three feet away. He further stated that the boy, while going fast across the street in a diagonal course, ran into the automobile; that there was no automobile on his right but he thought there was one on his left although he did not know where it was; that there was nothing to obstruct his view of either the sidewalk or the child going the eighteen feet between the curbstone and the place of the accident; that he was driving about fifteen miles an hour, and at that speed could stop the car in eight feet. Albany street at this point is a little over thirty-three feet wide from curb to curb.

The plaintiff, with four other children, lived with his parents on Main street; the eldest, John, was then within a few days of seven years of age, and the youngest not old enough to walk. Their father, who was away from home at the time of the accident, kept a small store. The mother could not afford to hire a maid, and did her own work. On the afternoon of the accident she was sitting on the doorsteps holding her baby, watching the plaintiff and other children at play, and permitted the plaintiff with his brother John and a younger brother to cross Main street to an open field in front of her home, where children were accustomed to play. This field extended from Main street to Albany street, but, after the children had entered it, bill boards prevented the mother seeing them from her position on the steps where she remained until the accident occurred, six or seven minutes after the plaintiff left her.

[1] The jury could have found that the older brother with the plaintiff was walking straight across Albany street at the time of the accident; that before starting to cross the older brother looked for approaching automobiles and saw none; that when he, holding his brother by the hand, was out in the street, he saw the automobile about twenty-one feet away; that he was almost hit by it and let go of his brother to avoid being struck; that the left front wheel of the automobile hit the plaintiff; that no horn was blown; that the accident happened in the day time while the defendant was operating an automobile in good condition upon a road surface not slippery, approaching an intersecting street and the two pedestrians crossing the street. In view of the testimony of the defendant that he had a clear view of both sidewalks, it was for the jury to say whether, upon all the evidence, there was a parked automobile near the curb which concealed the plaintiff from his view at any time.

[2][3][4] A child seven years of age may, without negligence on the part of its parents, be allowed on the streets unattended. Mattey v. Whittier Machine Co., 140 Mass. 337, 4 N. E. 575;Hayes v. Norcross, 162 Mass. 546, 39 N. E. 282;Miller v. Flash Chemical Co. 230 Mass. 419, 119 N. E. 702;Bengle v. Cooney, 243 Mass. 10, 13, 136 N. E. 812; In Bliss v. South Hadley, 145 Mass. 91, 13 N. E. 352,1 Am. St. Rep. 441, it was held that a parent might be found to have exercised reasonable care in placing a child one year and ten...