Negligence, In use of highway, Contributory, Of child. Practice, Civil, Requests, rulings and instructions.
At the trial of an action for causing conscious suffering and the death of a boy, the evidence was conflicting as to whether the boy was struck while on a sidewalk or when he suddenly darted out from behind a telegraph pole into the roadway and came in contact with the automobile. The judge refused to rule, at the request of the plaintiff, that the defendant "was bound to anticipate that pedestrians would approach from the sidewalk, and . . . was bound to keep a lookout toward the side as well as the front"; that on all the evidence, "in failing to observe or look to the sides of the road," the defendant was negligent; that it "was the defendant's duty to keep a reasonably careful lookout for other travellers on the highway so that he might be able to avoid the collision," and that the intestate "was not bound to anticipate an automobile or other vehicle would run him down unless he should exercise special care, and he had a right to assume the due care toward him of other travellers." The jury found for the defendant. Held, that the judge was not required to rule in the terms requested, and that instructions, which were full and accurate, covered the requests in so far as they were applicable.
BRALEY, J.
It was a question for the jury on conflicting evidence whether the plaintiff's intestate, a boy six and one half years of age, while lawfully walking on the sidewalk, was struck by an automobile operated by the defendant's servant or agent, inflicting injuries which resulted in his death, or whether the intestate suddenly darted out from behind a telegraph pole into the roadway, and came in contact with the automobile. Murray v. Liebmann, 231 Mass. 7. The question of the intestate's due care was submitted under instructions to which no exceptions were taken; but on the issue of the defendant's negligence, the plaintiff asked for the following instructions: that the defendant "was bound to anticipate that pedestrians would approach from the sidewalk, and . . . was bound to keep a lookout toward the side as well as the front"; that on all the evidence, "in failing to observe or look to the sides of the road," the defendant was negligent; that it "was the defendant's duty to keep a reasonably careful lookout for other travellers on the highway so that he might be able to avoid the collision," and that the intestate "was not bound to anticipate an automobile or other vehicle would run him down unless he should exercise special care, and he had a right to assume the due care toward him of other travellers."
The jury having returned a verdict for the defendant, it is contended that the refusal of these requests was error. But the judge was not required to rule in the terms requested, and the instructions fully and accurately covered the requests in so far as applicable. Day v. Cooley, 118 Mass. 524. Hennessey v. Taylor, 189 Mass. 583.
Exceptions overruled.