Negligence, In use of highway, Of child on highway, Imputed. At the trial of an action by a girl against the owner of a team for injuries received when the plaintiff was three years and eight months of age and due to the team backing into and running over her as she was playing on the highway, there was evidence tending to show that before the accident an employee of the defendant who was driving the team had been waiting for an opportunity to drive from the highway into a nearby lot, that with his knowledge children had been playing around and near the team in the meantime, and that some of them had climbed upon the wagon, that, an opportunity to enter the lot occurring, he ordered the children off and then, without looking behind the team, backed it and ran over the plaintiff, who at the time was crying and calling out for a shovel which a playmate had thrown under the wagon. Held, that the question, whether the driver was negligent, was for the jury.
It is not an absolute defense to an action by a child less than four years of age against the owner of a team for injuries caused by the plaintiff's being run over by the team because of negligence of the driver that, when injured, the plaintiff was playing on a public street and was not a traveller thereon.
At the trial of an action by a girl against the owner of a team for injuries, received when the plaintiff was three years and eight months of age and due to the team backing into and running over her as she was playing in the highway, there was evidence that shortly before the accident the plaintiff and her six year old brother and a companion of his of the same age were playing in a small yard in front of her home under the care of a sister eleven years of age, with whom they had been left temporarily by her mother, that the yard fronted on the highway and that there was no gate that could be closed, that, upon the plaintiff asking her sister to get her some bread and butter, the sister went into the house to do so and was gone about three minutes, that immediately upon her departure the plaintiff's brother seized a toy shovel of the plaintiff and ran into the street, pursued by his companion, that the companion took the shovel from him and threw it under the defendant's wagon, that the plaintiff, pursuing, wept and, standing behind the team, was crying out for her shovel when the driver backed the team and she was run over. Held, that the questions, whether the plaintiff properly was upon the street unattended and, if so, whether at the time of the accident she was exercising the degree of care which under the circumstances a reasonably careful and prudent child of her age would have exercised, and if she was not properly upon the street unattended, whether there was negligence on the part of the sister in caring for her which should be imputed to her, were for the jury.
BRALEY, J.
The defendant having obtained a verdict by order of the trial court at the close of the plaintiff's evidence, the questions presented by the exceptions are, whether there was any evidence for the jury of the defendant's negligence, or of her due care.
The accident happened on a public way, while the defendant's servant, in charge of a team loaded with material to be delivered in an adjoining lot, was waiting for an opportunity to drive through a passageway on to the lot and unload. While the evidence for the plaintiff is meagre and somewhat contradictory, the jury could have found that he knew of the presence of children, who were at play around or near the wagon upon which some of them had climbed, and that if he had looked carefully before backing around he would have seen that the plaintiff had joined or was near the group. The team ahead of him having passed in, unloaded, and returned, the exceptions state, that "before he got on his team" he ordered the children off, and the jury further could have found that, without looking to the rear, he then backed the wagon partly around for the purpose of turning into the passageway or lot, and ran over the plaintiff. It is no defense as between the parties, that the plaintiff was not a traveller, and, knowing of the presence of children, the driver in making the movement was called upon to use ordinary care not to endanger the plaintiff. In the opinion of a majority of the court, the question of the defendant's negligence was for the jury. Slattery v. Lawrence Ice Co. 190 Mass. 79. Jaehnig v. J.G. B.S. Ferguson Co. 197 Mass. 864.
If the jury were satisfied that the plaintiff, who was three years and eight months old when injured, was capable of going upon the street unattended, the degree of care required of her was that of a reasonably careful and prudent child of her age. It could not have been ruled as matter of law, that she should have anticipated that the team might be backed against her, as she stood in the street crying for a toy shovel which a playmate had taken from her and thrown under the wagon. Sullivan v. Boston Elevated Railway, 192 Mass. 37, 44, and cases there collected. If the jury determined that she was incapable of properly caring for herself, then the question of her sister's negligence, in whose care she had been placed temporarily by their mother, also was a question of fact, for reasons so fully stated in Butler v. New York, New Haven, Hartford Railroad, 177 Mass. 191, and Sullivan v. Boston Elevated Railway, 192 Mass. 37, that it is unnecessary to repeat them or to recite the evidence from which they would have been justified in finding that her sister had not been unfaithful. See also Ingraham v. Boston Northern Street Railway, 207 Mass. 451.
Exceptions sustained.