Wiswell v. Doyle

• Decision Date: 21 October 1893
• Citation: 35 N.E. 107,160 Mass. 42
• Parties: WISWELL v. DOYLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 42

35 N.E. 107

WISWELL v. DOYLE.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1893

After the evidence was all in, the plaintiff, in writing, requested the court to instruct the jury as follows "It does not necessarily follow, because a parent negligently suffers a child of tender age to cross a street that therefore the child cannot recover. If the child without being able to exercise any judgment in regard to the matter, yet does no act which prudence would forbid, and omits no act that prudence would dictate, there has been no negligence which was directly contributory to the injury. The negligence of the parent in such a case would be remote."

COUNSEL

Webster

Thayer and Hollis W. Cobb, for plaintiff.

Rockwood Hoar, for defendant.

OPINION

ALLEN J.

The plaintiff's counsel, in the request for instructions which was refused, assumed that the plaintiff might be found to have been negligent; but his request was founded on the view that although it was careless in the mother to allow her children to be upon the street unattended, still that her negligence did not lead to the accident, as there was nothing in the conduct of the child herself which was inconsistent with due care. It is certainly possible for a case to exist where, although it may be careless to let a young child go alone upon a street, yet the child may have been injured by the carelessness of somebody else while it was in a place proper for young children to be, and while doing nothing likely to lead to its injury. When a child is too young to have any intelligence or discretion in regard to 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. Lynch v. Smith, 104 Mass. 52; Gibbons v. Williams, 135 Mass. 333; Collins v. Railroad, 142 Mass. 301, 7 N.E. 856; Casey v. Smith, 152 Mass. 294, 25 N.E. 734; McGuinness v. Butler, 159 Mass. ----, 34 N.E. 259. The plaintiff's request was in accordance with this view of the law; but the presiding justice declined to give it, not regarding it as appropriate to the evidence in ...