Negligence. A girl six years and eight months of age living with her father and her grandmother can be allowed to leave the house and go upon a highway unattended without negligence being imputed as matter of law to her father or her grandmother if she is injured.
A girl six years and eight months of age engaged in play upon a highway, although not a traveller entitled to recover under the highway act for an injury from a defect in the street, can maintain an action against a person by whose negligence she is injured while in the exercise of the degree of care reasonably to be expected from her.
A girl six years and eight months of age sitting on the curbstone of a sidewalk, who, when told by an ice man carrying a piece of ice on his shoulder to get out of the way, gets up, moves out of the way, and sits down again farther along on the curbstone, if injured by the ice falling and striking her leg when the ice man stumbles, can be found to be in the exercise of the degree of care reasonably to be expected from her, and even in the exercise of the degree of care to be expected from a reasonably careful adult.
If the employee of an ice company carries a one hundred pound piece of ice on his shoulder without tongs in a street where many children are near, and, slipping as he approaches the curbstone of a sidewalk, gives the cake of ice a twitch or jerk so that it falls and strikes the sidewalk bounding up and breaking the leg of a child who in the exercise of due care has moved to make room for the ice man to pass, there is evidence of the employee's negligence, and the ice company may be found to be liable for the injury to the child, as the resulting accident although unusual and peculiar is not so extraordinary that it might not reasonably have been foreseen and guarded against by those in charge of the ice company's business.
BRALEY, J.
The plaintiff although a child of tender years had reached an age when she could be allowed to leave her home and go upon the public ways without negligence being conclusively imputed to her father or grandmother with whom she lived. McDermott v. Boston Elevated Railway, 184 Mass. 126, 128, and cases there cited. Young v. Small, 188 Mass. 4.
And the fact that with her companions she was engaged in play does not bar a recovery, however decisive such a circumstance might be in a suit against the municipality for injuries received by a defect in the street. O'Brien v. Hudner, 182 Mass. 381. Tighe v. Lowell, 119 Mass. 472.
Upon conflicting evidence there were two possible conclusions that could have been reached as to her conduct. If the defendant's witnesses were believed, at the time of her injury she with other children was at the rear of the ice cart where they carelessly remained after being ordered to leave. But this defence evidently was not accepted by the jury to whom the question was properly left, with the specific instruction that if they found this version to be true, the plaintiff was negligent and could not recover.
It often has been said by this court that the standard of care on the part of an infant plaintiff, if found capable of going on the public ways unattended, depends upon his age and intelligence. Aiken v. Holyoke Street Railway, 180 Mass. 8. McDermott v. Boston Elevated Railway, ubi supra.
Under proper instructions, it was therefore for the jury to determine by this test the character of the plaintiff's behavior. But upon her statement of the manner in which the accident happened she also could have been found to have exercised the degree of care required of a reasonably careful adult. Wiswell v. Doyle, 160 Mass. 42. McNeil v. Boston Ice Co. 173 Mass. 570.
By either standard to take a seat farther along on the curbstone in obedience to an order of the defendant's servant, and for the purpose of leaving room for him to pass from the carriage way to the sidewalk was not of itself an act of negligence.
The jury could find, as undoubtedly they did, that there was no apparent reason for her to anticipate that the defendant's servant would twist the cake of ice he was carrying on his shoulder so that it would fall and finally come in contact with her person, and for this reason the second, third and fourth rulings requested were rightly refused.
While the combination of circumstances which caused him to stumble, and the cake of ice to fall on the ground, when it rebounded striking her, are unusual and peculiar, they cannot be said as matter of law to be so extraordinary as not reasonably to have been foreseen, and hence should have been guarded against by those in charge of the defendant's business. Powell v. Deveney, 3 Cush. 300. Manning v. West End Street Railway, 166 Mass. 230, 231. Flynn v. Butler, 189 Mass. 377. The first ruling consequently could not have been properly given.
Exceptions overruled.