Young v. Small

• Citation: 188 Mass. 4,73 N.E. 1019
• Parties: YOUNG v. SMALL et al.
• Decision Date: 06 April 1905
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 4

73 N.E. 1019

YOUNG v. SMALL et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 6, 1905

COUNSEL

J. J. Feely and Roger Clapp, for E. M. Young.

Stephen H. Tyng and John W. McAnarney, for defendants.

OPINION

BRALEY, J.

The plaintiff, a girl nine years of age, was returning from school with a companion, and they, with other children, were engaged in playing in the street, through which at the same time the defendants' team was passing in charge of their servant. Her testimony showed that she was not giving any attention to the use of the street by others, being entirely absorbed in play, when, without looking to see if there were passing teams, or if it was clear, she deliberately ran across the street, and was struck by the horse and knocked down. It may be conceded that she had reached an age of sufficient maturity to be allowed to use the public ways to go to and from school without negligence being imputed to her parents, yet she was required to exercise such a degree of care as reasonably was to be expected of a child of her years. McDermott v. Boston Elevated Ry. Co., 184 Mass. 126, 128, 68 N.E. 34, 100 Am. St. Rep. 548. But if the plaintiff was lawfully upon the highway, yet her heedlessness in crossing a public street, although under momentary excitement, without the least regard to its use at the time by other travelers, exhibits a spirit of carelessness and a willingness to take chances that prevents her recovery, for it is apparent that, if she had looked, the team easily could have been avoided. Such conduct, judged by the ordinary standard of care shown by children of her age, must be deemed to have been negligent, and precludes her recovery. Messenger v. Dennie, 137 Mass. 197, 50 Am. Rep. 295; Mullen v. Springfield St. Ry. Co., 164 Mass. 450, 41 N.E. 664; Morey v. Gloucester St. Ry. Co., 171 Mass. 164, 50 N.E. 530; Sewell v. N. Y., N.H. & H. R. R. Co., 171 Mass. 302, 50 N.E. 541; Murphy v. Boston Elevated Ry. Co., 73 N.E. 1018. No consideration of the due care of the defendants' servant is required, as this negligence on her part is sufficient to sustain the ruling under which a verdict was ordered for the defendants.

Exceptions overruled.