West v. Poor
| Decision Date | 19 June 1907 |
| Citation | 196 Mass. 183,81 N.E. 960 |
| Parties | WEST v. POOR (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
T. S. Herlihy and R. E. Burke, for plaintiffs.
N Jones and Ernest Foss, for defendant.
The defendant supplied milk to the plaintiff's father, and on the morning of the accident, as he came back to his wagon from delivering milk at a house near by, he found in the wagon the plaintiff, who was a little more than 5 years of age, her sister, between 2 and 3, and two others, of 7 and 4 respectively, children of a neighbor and playmates of the plaintiff. The wagon was what is known as a low-down closed milk wagon with doors at the sides and the floor about a foot from the ground. The defendant had frequently given the children a ride. The defendant drove a short distance and then stopped, and the two other children got out. The horse started up before the plaintiff and her sister got out, and the defendant drove a short distance further to the house of his next customer, where he made a regular stop. He was sitting on the right-hand side, with the reins in his right hand, and the children were on the seat at his left, the plaintiff being next to the door. The defendant attempted with the reins in his hand, to help the children out, and after he had taken the plaintiff by the arm to help her out and while he was trying to take care of the younger child, the horse started, and in some way (the defendant could not say just how the accident happened) the plaintiff slipped or fell and the hind wheel went over her leg, causing the injuries complained of. The horse was hard-bitted and, as the defendant testified, had started 'once in a while,' and would not always stand still at the regular stopping places. The father of the plaintiff was at work, and the mother was sick in bed under the care of a doctor and a nurse, and the younger children were in the care of their sister who was 19 years of age. It does not appear that the older sister knew where the children were or what they were doing, though we do not regard that as especially material.
In getting into the wagon the plaintiff was an intruder or trespasser, and the defendant, when he came back and found her and the other children in it, could have properly ejected her, using no more force than was necessary and having regard to her tender years. Daniels v. N.Y. & New England Railroad, 154 Mass. 349, 28 N.E. 283, 13 L. R. A. 248 26 Am. St. Rep. 253. The fact that the plaintiff had frequently ridden in the wagon did not constitute an invitation to her to get in on the morning of the accident, however natural it may have been under the circumstances for her to do so. But by allowing her to...
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