Wood v. Balzano

• Decision Date: 11 September 1940
• Court: Maine Supreme Court
• Parties: WOOD v. BALZANO (two cases).

15 A.2d 188

WOOD

v. BALZANO (two cases).

Supreme Judicial Court of Maine.

Sept. 11, 1940.

Exceptions from Superior Court, Cumberland County.

Actions, heard together before a referee, by Charles W. Wood, Jr., pro ami, against Joseph Balzano, and by Charles W. Wood against Joseph Balzano, for damages for personal injuries to the infant plaintiff and expenses incurred in connection therewith by his father. The referee made reports in favor of plaintiffs, and defendant brings exceptions to the acceptance of the reports.

Exceptions overruled.

Argued before BARNES, C. J, and STURGIS, THAXTER, HUDSON, MANSER, and WORSTER, JJ.

Bernstein & Bernstein, of Portland, for plaintiffs.

I. Edward Cohen, of Portland, for defendant.

MANSER, Justice.

These actions, heard together before a referee, are for damages for personal injuries to the infant plaintiff, and expenses incurred in connection therewith, by his father. The defendant filed written objections to the reports of the referee in favor of the plaintiffs, and the cases come forward on exceptions to the acceptance of the reports, on the question of liability, no objection being made as to the amounts awarded.

The minor plaintiff, a child of four years, was quite seriously injured, when an automobile operated by the defendant was being backed out of a dooryard where the boy was at play with other children. Questions of fact are decided and settled by referees, and such decision will not be disturbed if supported by any evidence of probative value. Hincks Coal Co. v. Milan et al. 135 Me. 203, 193 A. 243; Richardson v. Lalumiere, 134 Me. 224, 184 A. 392.

The issues before the referee were negligence on the part of the defendant, and the claim by the defendant that there was imputable negligence on the part of the parent for leaving the child in a place of danger. The exceptant must show that as a matter of law the facts did not warrant an award against him.

From the preponderance of evidence, the referee would be justified in finding the following situation:

The families of both plaintiff and defendant lived in a six tenement house in Portland. In the rear was a court or yard of comparatively small area, commonly used as a playground by the children in the block. There were six children in the plaintiff's family, ranging in age from ten downward. There were at least a dozen other children living in the tenement house. The plaintiff child, and two older sisters, then 10 and 8 years of age, respectively, were playing in the yard, together with other children, in all ten or twelve. The mother had been back and forth in the yard, with an eye to the safety of her children, but a few minutes before the accident had returned to the house to attend to some household duties. The defendant and another young man had been cleaning an automobile belonging to defendant's mother, which was parked in the same yard. He knew that the children were running about the yard, playing tag and hide and seek and if some vanished momentarily, they reappeared with equal celerity. There was evidence that the boy subsequently injured was most of the time sitting down and playing in the sand with another boy a year younger. Upon completion of his work on the car, the defendant and his companion entered the car and defendant undertook to back it out of the yard to the street. There was testimony that the defendant blew the horn, but two older children said they did not hear it. The defendant said he was looking into the rear vision mirror, but obviously could not see a small child on the ground in the rear of the sedan car. The infant plaintiff was struck and his leg run over, receiving a "crushing blow", as described by the physician, while the car was still in the yard but approaching the inside edge of the sidewalk. The defendant stopped his car upon hearing a shout from passing pedestrians. The...