Sullivan v. Chadwick

• Decision Date: 09 June 1920
• Parties: SULLIVAN v. CHADWICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 130

127 N.E. 632

SULLIVAN

v.CHADWICK.

Supreme Judicial Court of Massachusetts, Hampden.

June 9, 1920.

Report from Superior Court, Hampden County; Christopher T. Callahan, Judge.

Action of tort by John W. Sullivan, per prochein ami, against Henry D. Chadwick, resulting in verdict for plaintiff. On report to the Supreme Judicial Court. Judgment ordered for defendant.

McDonnell & Gallagher, for plaintiff.

Scott Adams, of Springfield, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for personal injuries sustained at about 3 o'clock in the afternoon of May 10, 1917, by the plaintiff, then 3 years and 9 months old, on a public highway in Springfield by reason of collision with an automobile owned and driven by the defendant.

The judge ruled that there was no evidence that the child was in the care of any person at the time and that he was on the highway unattended by any person. The father of the plaintiff testified:

That when he left home at noon on the day of the accident the plaintiff was there; ‘that he did not know when the boy left home nor when his wife left home, if she did leave; that the boy had gone away at previous times ‘where we didn't know’; that he had gone away alone; that he would not say he wandered away, because he wandered back; that he knew where he was going and knew the way back; that he went and came alone, without saying anything to anybody; that at several times before the accident the plaintiff had been tied up to make him stay at home, but that this was not a common occurrence.'

At the close of the plaintiff's evidence his counsel stated that he ‘was going to stand on the plaintiff's own due care.’ The case must be considered on the footing that there was no one in charge of him at the time of the accident.

The father of the plaintiff testified also that the boy had been to the house of relatives in West Springfield, and knew the way to it himself as well as the way over Plainfield street and back, and had been there before alone, that the boy had been on the street with him very much; that he knew what automobiles were and was afraid of them; ‘that he always watched for them when they went to cross the street together. ‘He would always hold me back before I stepped off the curb to look up and down.’' Another witness testified that the plaintiff ‘was a fairly well developed boy and rather bright and intelligent.’ The father of the plaintiff further testified that he lived on Plainfield street, where were two trolley tracks over which ran seven different lines of cars, five on 15-minute time and two on 20-minute time; that it is 60 feet in width and ‘is a main avenue between Springfield on the east and West Springfield, Holyoke and Westfield on the west; that possibly 100 automobiles passed over it in an hour; that many automobiles passed over it all the while; that in addition trucks and drays and horse-drawn vehicles were passing over it all the while.’ The family consisted of the father, the mother, another younger child, and the mother's mother who assisted in the duties of the household.

It seems plain under these circumstances that the parents of the plaintiff were negligent in permitting him to be away from home unattended and with his whereabouts unknown for two or three hours. The boy, although bright and careful in his habit about crossing a street, was quite too young and immature to be trusted alone to look out for himself for that length of time in the many emergencies which inevitably confront a pedestrian upon a street like that where he lived. It must be presumed that the child did not possess sufficient discretion to exercise due care and that the parents were negligent in omitting oversight over him for so long a time under the conditions here disclosed. Although many cases have arisen involving the care required of children on the public ways, it never has been suggested that a child only 3 years and 9 months old could be possessed of sufficient judgment to be alone upon such a street as that here shown for a period of two or three hours. The prima facie evidence of negligence of parents which has been said in many cases to arise from the presence of a young child upon a busy street is not met at all by explanatory evidence in the case at bar. Casey v. Smith, 152 Mass. 294, 25 N. E. 734,9 L. R. A. 259, 23 Am. St. Rep. 842;Cotter v. Lynn & Boston Railroad, 180 Mass. 145, 61 N. E. 818,91 Am. St. Rep. 267;Slattery v. O'Connell, 153 Mass. 94, 26 N. E. 430,10 L. R. A. 653;Gibbons v. Williams, 135 Mass. 333;Wright v. Malden & Melrose R. R., 4 Allen, 283;Grant v. Fitchburg, 160 Mass. 16, 35 N. E. 84,39 Am. St. Rep. 449.

[2] Nothing in the condition of the family created any exigency justifying such conduct on their part. See Butler v. N. Y., N. H. & H. R. R., 177 Mass. 191, 193, 58 N. E. 592. The plaintiff with respect to the care exercised by his parents is not aided by St. 1914, c. 553. Bullard v. Boston Elv. Ry., 226 Mass. 262, 115 N. E. 294.

This, however, is not conclusive against the rights of the plaintiff. The child may still exercise the care required of ordinarily prudent adult persons under the circumstances, and if he does, he is not precluded from recovery. It was said in Wiswell v. Doyle, 160 Mass. 42, 43, 35 N. E. 107,39 Am. St. Rep. 451:

‘When a child is too young to have any intelligence or discretion about taking care of itself in a public street, and when it has carelessly been allowed to go there unattended, still while upon the street it may have done nothing which would be deemed dangerous or lacking in due care, provided its movements had been directed by an adult person of reasonable and ordinary prudence in charge of it, and yet it may have been hurt. through the carelessness of another person. Under such circumstances, it may recover damages for the injury.’

See Collins v. South Boston R. R., 142 Mass. 301, 7 N. E. 856,56 Am. Rep. 675;Miller v. Flash Chemical Co., 230 Mass. 419, 119 N. E. 702.

The accident occurred near the easterly end of the bridge, whereby Plainfield street, at this point running a little north of west, is carried over north and south tracks of the Boston & Maine Railroad. The bridge is a concrete structure having a length of 100 feet and a width of 66 feet. It is said in the record that--

‘On either side of it are sidewalks for pedestrians about 7 feet wide, on the outside of each of which are concrete fences 3 feet 10 inches high. On the inside of each sidewalk and between...