Way, Public: defect in highway. Bridge. Negligence, Of child, Of parent. It is the duty of a town, which maintains a bridge as a part of one of its principal streets, over which children pass in going to and returning from school, to maintain railings at the sides of the bridge that will make it safe and convenient for all travellers including children; and, if the town allows a hole in such a railing, through which children may fall, to continue to exist after reasonable notice of its existence, this can be found to be a breach of the duty of the town which makes it liable under R.L.c. 51, § 17, for the loss of life of a child who fell through the hole while passing over the bridge as a traveller.
A boy about three years and eight months of age, who on his way home is passing over a bridge that is a part of a highway of a town, can be found to be a traveller on the highway in spite of a slight or momentary diversion from his main purpose of going home.
A boy about three years and eight months of age, who fell through a hole in the railing of a bridge that was a part of a highway of a town, and whose movements before the accident are shown, can be found on proper evidence to have been in the exercise of the care to be expected from one of his age; and it here was not contended that the father of such a boy was negligent in allowing him to go upon the street under the circumstances shown by the evidence.
SHELDON, J.
While the question is not free from doubt, we are of opinion that the jury could find that there was a defect or want of a sufficient railing on this bridge. They certainly could find that a railing or fence was needed to make the bridge safe for travel. It was a part of one of the principal streets of the town, a street by which children went to and from school. They could find further that there was a hole in the railing through which children might fall; that the protection afforded to children was so much diminished by the existence of this hole as to make the bridge unsafe for them to travel upon; that the defect had existed so long that the officers of the town reasonably might be taken to have had notice of it, as well as of the fact that school children were accustomed to pass regularly over the bridge. It was not unreasonable to require the town to keep the bridge safe and convenient for all travellers, both children and grown persons.
There was evidence to warrant a finding that the plaintiff's intestate was a traveller upon the bridge. His main purpose, the purpose for which he went upon the bridge, was to go to his home. A slight or momentary diversion from that main purpose, not being an abandonment of it, would not show decisively that he had ceased to be a traveller. Gulline v. Lowell, 144 Mass. 491, and cases cited. Bliss v. South Hadley, 145 Mass. 91. Donohue v. Newburyport, 211 Mass. 561, 569. The somewhat contradictory testimony of some of the witnesses merely raised a question for the jury. Tierney v. Boston Elevated Railway, 216 Mass. 283. With the weight of the testimony we have nothing to do.
It could be found that the intestate exercised that degree of care which could be expected from one of his age. There was sufficient evidence of his actions to avoid the difficulty found in McCulloch v. Needham, 217 Mass. 227.
It has not been contended that the intestate's father was negligent in allowing him to go upon the street under the circumstances testified to. That question hardly is raised by the report.
Upon both of the points upon which the ruling at the trial was made, the case comes near to the border line; but in our opinion the evidence made them issues for the jury.
Upon the terms of the report, judgment must be entered for the plaintiff in the sum of $500.
So ordered.