Sullivan v. Boston Elevated R. Co.

• Decision Date: 17 May 1906
• Citation: 192 Mass. 37,78 N.E. 382
• Parties: SULLIVAN v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 37

78 N.E. 382

SULLIVAN v. BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1906

COUNSEL

Timothy W. Coakley, Danl.H. Coakley.

Roland H. Sherman, and Chas C. Johnson, for plaintiff.

Choate Hall & Stewart, for defendant.

OPINION

LORING J.

The defendant's contention in support of its second request for a ruling is that in a case where the minor child who is injured (after getting on the street in question without negligence on the part of his parents) has not exercised any care, the burden is on the plaintiff to prove that he was incapable of exercising any care; and that in the case at barthese plaintiffs did not sustain the burden of proving that fact; that in the case at bar that fact was left to conjecture and not proved.

There doubtless is an age where the court can say as a matter of law that a child cannot exercise any care under any circumstances.There also is an age where the court can say as matter of law that a minor is capable of exercising some care under circumstances like those in question.See in this connection Collins v. South Boston R. R.,142 Mass 301, 314, 7 N.E. 856, 56 Am. Rep. 675.The limits of these two classes are not settled by our decisions.There are now and probably always be cases where it may be fairly said (as it was said in the case at bar) that the child did not under the circumstances exercise any care, and yet it cannot be said as matter of law that an ordinarily prudent child of the age having the capacity of the child in question (whichever is the correct statement) was capable or incapable of exercising care.Such cases must be left to the jury.In such cases the matter is not a matter of conjecture, and yet nothing more can be proved than was proved in the case at bar.In the case at bar it was proved that the plaintiff in question was 'a lively child, active and energetic,' 4 years and 3 months old.The circumstances calling for the exercise on his part were these: The accident happened on one of the main thoroughfares of Boston, on which the defendant had a double track, a surface railway, and (if the plaintiff's evidence was to be believed) a car was running from fifteen to twenty miles an hour.This boy, while crossing this thoroughfare, walked at a 'pretty lively' gait, or trotted 'at a fair little jog' into the forward fender of the defendant's car.At the time he was behind the other boy, who was slightly older.This made out a case for the jury.See, in this connection, Wright v. Malden & Melrose R. R., 4 Allen, 283;Munn v. Reed, 4 Allen, 431;Callahan v. Bean, 9 Allen, 401;Lynch v. Smith,104 Mass. 52, 6 Am. Rep. 188;Gibbons v. Williams,135 Mass. 333;O'Connor v. Boston & Lowell R. R.,135 Mass. 352;McGeary v. Eastern R. R.,135 Mass. 363;Marsland v. Murray,148 Mass. 91, 18 N.E. 680, 12 Am. St. Rep. 520;Slattery v. O'Connell,153 Mass. 94, 26 N.E. 430, 10 L. R. A. 653;Creed v. Kendall,156 Mass. 291, 31 N.E. 6;Grant v. Fitchburg,160 Mass. 16, 35 N.E. 84, 39 Am. St. Rep. 449;Powers v. Quincy & Boston St. Ry.,163 Mass. 5, 39 N.E. 345;Hewett v. Taunton St. Ry.,167 Mass. 483, 46 N.E. 106;McNeil v. Boston Ice Co.,173 Mass. 570, 54 N.E. 257;Butler v. New York, New Haven & Hartford R. R.,177 Mass. 191, 58 N.E. 592;Walsh v. Loorem,180 Mass. 18, 61 N.E. 222, 91 Am. St. Rep. 263;Cotter v. Lynn & Boston R. R.,180 Mass. 145, 61 N.E. 818.

2.We are also of opinion that the question of the parents' negligence was for the jury.

The difficulty with the argument of the defendant's counsel here is that he has not told us what more (in his opinion) the parents were as matter of law called upon to do.Since the day was a rainy one, we cannot say as a matter of law that it was not proper to keep the minor plaintiff in the house.Under the circumstances the lower hall cannot be said to be an improper place for the boys to play in although the front door was not locked.The front door was the common door of all three apartments and so not within the control of the boy's parents.Neither can we say that the mother ought to have left her washing to stand over the boys while playing, and the same is true as to the father, who was to go to work after supper and who was spending what was his night looking after the sick baby two and a half years of age.It is to be noted on the uncontradicted testimony the boy 'was always a good boy to mind,' and was cautioned by both ...