Negligence, Of parent, Street railway. In an action by a child against a corporation operating a street railway for personal injuries from being struck by a car of the defendant when the plaintiff was upon the street unattended, it appeared that the plaintiff was two years and nine months of age, that the mother of the plaintiff had five other young children, two of them younger than the plaintiff, the youngest being three months old, and that she had no one to help her to take care of the children or to do the housework while her husband was at work, that she allowed the plaintiff to go out in the yard back of the house to play with her next older brother, who was four years and four months old, that the yard was surrounded by a fence and the only way to get out of it was by a gate, that the mother had tied the gate with a piece of clothes line so that it could not be opened without untying the rope, that while the plaintiff was in the yard the mother was attending to the babies and performing her household duties, that she did not look out of the window into the yard to see whether the children were there, that the plaintiff came in for a drink of water and then went out again into the yard, and that fifteen or twenty minutes later the plaintiff's mother heard of the accident. Held, that it could not be said as matter of law that the plaintiff's mother had failed to exercise the care which reasonably could be required of her, and that it was for the jury to say whether she had taken reasonable precautions to keep the plaintiff in the yard and in other respects had exercised reasonable care.
In an action by a child, two years and nine months old when injured, against a corporation operating a street railway for personal injuries from being struck by a car of the defendant, it appeared that just previous to the accident two or three children of about the plaintiff's age ran across the street ahead of the car, that the motorman reduced the speed of the car, and that he was putting on the power to start up again when the plaintiff ran across the street and was struck by the car. There was evidence that as soon as the motorman appreciated the impending danger of injury to the plaintiff he tried to stop the car, and he testified that he could have stopped the car within a distance of twelve or fifteen feet and actually did so; but there also was evidence that the motorman either saw or might have seen the plaintiff in a position of danger at a distance of thirty feet. Held, that it might have been found that, even if the motorman did not see the plaintiff in time to stop the car before it reached her, yet in the exercise of proper care he ought to have seen her in time, and, in that case, it could be found that the accident was due to his negligence, although, as soon as he did see the plaintiff and perceived the danger of running into her, he made every effort in his power to look out for her safety.
SHELDON, J.
There was evidence of due care on the part of the mother of the infant plaintiff. She had taken precautions to keep the child in a safe place, in the yard of the house. It was for the jury to say whether these precautions were sufficient. With the other duties which were incumbent upon her, and with what could be found to be the practical impossibility of keeping the child under her eyes, it cannot be said as matter of law that she failed to exercise any other care which reasonably could be required of her. The case does not resemble Cotter v. Lynn Boston Railroad, 180 Mass. 145. It is more like such cases as Hewitt v. Taunton Street Railway, 167 Mass. 483; Mellen v. Old Colony Street Railway, 184 Mass. 399; Sullivan v. Boston Elevated Railway, 192 Mass. 37; Ingraham v. Boston Northern Street Railway, 207 Mass. 451; and Dowd v. Tighe, 209 Mass. 464. It is conceded that this child was too young to exercise care for herself, and that question need not be considered. Grella v. Lewis Wharf Co. 211 Mass. 54, 57.
It is a more difficult question whether there was any evidence of negligence in the operation of the defendant's car. As to this, it does not seem to us to be material under the circumstances whether the motorman did or did not ring his gong. If he did not do so, yet the child was not misled thereby. She saw the car. And there was evidence that as soon as the motorman realized the impending danger he tried to stop the car as soon as possible; and except from his own testimony we find no evidence of any lack of vigilance on his part. But there was evidence that he either saw or might have seen the child in a position of danger at a distance of thirty feet, and he testified not only that he could have stopped his car within a distance of twelve or fifteen feet, but that he actually did so. In the opinion of the majority of the court the jury were justified in finding, and we must now treat it as settled by their verdict, that even if he did not see her in time to stop his car and avoid the injury which resulted, yet he ought in the exercise of proper care to have done so. In that event, it could be found that the accident was due to his negligence, even though, as soon as he did see her and perceived the danger of running into her, he made every effort in his power to look out for her safety.
Judgment must be entered in each case for the plaintiff in accordance with the terms of the report.
So ordered.