Negligence, Of child, In use of highway. Practice, Civil, Judge's charge. Evidence, Presumptions and burden of proof.
In an action for causing the death of a boy seven years and five months of age, where the jury were instructed that the boy was not in the exercise of due care in placing himself where he incurred the injury that caused his death "if he appreciated the danger that there was in putting himself in the place where he was," it was held, that the instruction certainly was sufficiently favorable to the defendant, and it was said, that one of the reasons that a child is not to be expected to exercise the same degree of care as an adult is his lack of appreciation of the risks he may be running.
It is not necessarily negligent for an ordinarily bright boy seven years and five months of age, who sees men with horses moving a heavy iron girder along the ground, to stand within the natural forward course of a roller on which the girder is laid, and at the trial of an action for causing the death of the boy by allowing the roller to run over him, it is right for the presiding judge to refuse to make a ruling that if the boy so stood he was not in the exercise of due care, especially where it appears that the boy was in the centre of the sidewalk of a public street and that the roller was lying in the gutter below the level of the sidewalk before it suddenly was started into motion, and where it is not a conceded fact that the boy had seen the roller or was at fault in not having seen it.
In an action against a corporation engaged in a general teaming business, for causing the death of the plaintiff's intestate through the negligence of a driver of a dray of the defendant, where it appears that the accident happened after half past six o'clock in the evening, it is proper for the judge in his charge to suggest to the jury that they may consider whether it was the time of night when the driver was in a hurry to finish his work and to get home and feed his horses, although there has been no direct evidence that the driver was in a hurry.
SHELDON, J.
The judge at the trial acted rightly in refusing the defendant's first and third requests and in submitting the case to the jury.
There was evidence that the accident was due to negligence of the defendant's driver Kellough. Indeed this hardly has been contested.
It could be found also that the plaintiff's intestate was in the exercise of as high a degree of care as properly could be expected from one of his age. According to the testimony of Coughlin the intestate was walking along the sidewalk until his progress was stopped by the girder. Then Kellough suddenly started the horses to pull the girder; the roller was drawn across the sidewalk, caught the intestate's foot, knocked him down and rolled upon his body. He had no warning of the starting of the horses or of the danger of his foot being caught. No caution was given to him by Kellough or any one else. He was not bound to anticipate that the girder would be started or that there would be a protruding roller likely to hit him or to catch his foot. It could be found that he had not seen the other girders drawn away, and that there was absolutely nothing to indicate the presence of any impending danger. Under such circumstances it would have been wrong to rule that his conduct was negligent.
The giving of the fourth request with the qualification added to it by the judge certainly was sufficiently favorable to the defendant. One of the reasons why a child is not held to the same degree of care as if he were an adult is lack of appreciation of the risks that he may be running.
The other requests were rightly refused. The assumptions made in them, if found by the jury to be correct, would have a bearing upon the question of the boy's due care, but would not be conclusive against him. It was not a conceded fact, as was assumed in the fifth and sixth requests, that he had seen or that he was at fault for not having seen the roller which struck him, lying as it was in the gutter below the level of the sidewalk on which he stood. And there would be serious difficulty in applying the rule of the seventh request even to an adult.
The exception to what the judge said to the jury, about the lateness of the hour and as to whether Kellough was in a hurry to feed his horses and get home, cannot be sustained. It was proper to call the attention of the jury to the subject. The case does not resemble Plummer v. Boston Elevated Railway, 198 Mass. 499, 516. It does not need direct evidence to enable a jury to say that this may be so at a time between half-past six and seven o'clock in the evening, and the fact might have a bearing upon Kellough's conduct and the inferences to be drawn from it.
None of the other exceptions requires discussion.
Exceptions overruled.