O'shaughnessy v. Suffolk Brewing Co.

• Decision Date: 06 January 1888
• Parties: O'SHAUGHNESSY v. SUFFOLK BREWING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 569

14 N.E. 779

O'SHAUGHNESSY v. SUFFOLK BREWING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1888

COUNSEL

S.B. Allen and T.J. Barry, for plaintiff.

The courts in this commonwealth have invariably left this matter of contributory negligence of children to the jury, except in cases where there was flagrant misuse of the highway, or evidence of such negligence, beyond all reasonable doubt "according to the common experience of all men." Mattey v. Machine Co., 140 Mass. 337, 4 N.E. 575; Collins v. Railroad Co., 142 Mass. 301, 7 N.E. 856; McDonough v. Railroad Co., 137 Mass. 210; Gibbons v. Williams, 135 Mass. 333; Murley v Roche, 130 Mass. 330; Lynch v. Smith, 104 Mass 52; Mulligan v. Curtis, 100 Mass. 512; Lovett v. Railroad, 9 Allen, 557; Whart.Neg. § 313.

M.F. Dickinson, Jr., and H.R. Bailey, for defendant.

The defendant submits that it is fully as careless and dangerous to sit down for three or four minutes in a traveled part of a much-frequented city thoroughfare, and to stoop over, with one's back turned all the while, paying no attention to teams or horse-cars in the street, as it is to ride upon the runners of a sleigh, and get off while the sleigh is moving very slowly, and another sleigh, 30 feet distant, is approaching at a moderate rate of speed, as in Messenger v. Dennie, 141 Mass. 337, 5 N.E. 283. It is now well-established law that where, as a matter of common knowledge and experience, the court can see that, upon all the undisputed facts, the plaintiff was not in the exercise of ordinary care, and that the injury received was in part attributable to the plaintiff's want of care, it is the duty of the judge to instruct the jury, as a matter of law, to find a verdict for the defendant. Wheelwright v. Railroad Co., 135 Mass. 229; Gavett v. Railroad Co., 16 Gray, 505; Wills v. Railroad Co., 129 Mass. 351. The burden of proof is upon the plaintiff to show positively that she was in the exercise of due care. If she offers no evidence that she was in the exercise of care, or if the whole evidence shows that she was careless, the court must instruct the jury, as a matter of law, that the action cannot be maintained. Gahagan v. Railroad Co., 1 Allen, 189; Todd v. Railroad Co., 7 Allen, 208. A mere scintilla of evidence is not sufficient to authorize a judge to submit to the jury the question whether the plaintiff was in the exercise of due care. There must be evidence upon which a jury may reasonably and properly infer that the plaintiff was in the exercise of due care. Butterfield v. Railroad Corp., 10 Allen, 532. While it is true that a child is not held to the same degree of care as an adult, it is well settled that a child must exercise that degree of care which may reasonably be expected of children of his or her own age. See Collins v. Railroad Co., 142 Mass. 314, 315, 7 N.E. 856; Cram v. Railroad Co., 112 Mass. 38; Wendell v. Railroad Co., 91 N.Y. 420; Lyons v. Brookline, 119 Mass. 491.

OPINION

C. ALLEN, J.

In view of the verdict, it must now be assumed, in favor of the plaintiff, that the injury to her occurred substantially in the manner which she described; namely, that while on her way to school she sat down on the edge of the sidewalk, in order to sharpen her pencil upon the curbstone, with her feet in the gutter, and that defendant's team came along and hit her while she was in that position. The instructions to the jury left them free to find a want of due care on her part, and were carefully guarded in all respects, unless it was the duty of the court to rule, as matter of law, that the plaintiff was not entitled to recover, because there was no evidence which would warrant the jury in finding that she was in the exercise of due care. It is to be observed, in the view of the...