SULLIVAN v. BOSTON ELEVATED RAILWAY

Negligence. There is an age of a child, beyond that at which as matter of law he is incapable of exercising care and before reaching that at which as matter of law he is capable of exercising care, when, in an action by the child for personal injuries, it is a question of fact for the jury whether under the circumstances attending his injury he was incapable of exercising care so that no care on his part personally need be proved.

In an action for personal injuries by a child run over by a car of a street railway company, if it appears that the plaintiff was a boy four years and three months of age, a lively child, active and energetic, that the car was running on a city street at the rate of from fifteen to twenty miles an hour, that the plaintiff was crossing the street with another boy who was slightly older ahead of him, and that he walked at a "pretty lively gait" or trotted "at a fair little jog" into the forward fender of the car which ran over him, it is a question for the jury whether the plaintiff has shown that he was incapable of exercising care and so was not required to exercise it in crossing the street.

In an action by a child for personal injuries from being run over by a car of a street railway company, if it appears that the plaintiff was a boy four years and three months of age, a lively child, active and energetic, that the parents of the plaintiff with their three children occupied an apartment on the third floor of a house in which lived three families who used the hallway and front door in common, that it was a rainy day and the plaintiff's mother let him play in the hallway on the ground floor with another little boy who had come to play with him, that the mother was washing at a tub in a small kitchen opening into a small entry that led into the hallway on the third floor and that every few minutes she went about ten or twelve feet to the rail where she looked down to see the little boys, and she also could hear them at play while she was at the tub, that finally she missed them "because it was so quiet all of a sudden" and, after looking down and seeing they were not there, called to her husband to go down and see where the plaintiff was, that, while she was washing, her husband was in another room tending the baby who was sick, that the husband on going down learned that the plaintiff had gone with the other little boy out of the front door and had been run over by a car of the defendant, that the plaintiff's mother never allowed him to go out when it rained, that the father knew that the street outside was a dangerous place, that he heard the mother tell the boy to be sure and stay in the entry, and he told the boy not to go out of the entry on to the door steps, and did not think he would go out when he had told him not to, that "he was always a good boy to mind." Held, that the question whether the plaintiff's parents exercised due care was one of fact for the jury.

LORING, J.

1. The defendant's contention in support of its second request for a ruling is that in a case where the minor child who is injured (after getting on the street in question without negligence on the part of his parents) has not exercised any care, the burden is on the plaintiff to prove that he was incapable of exercising any care; and that in the case at bar these plaintiffs did not sustain the burden of proving that fact; that in the case at bar that fact was left to conjecture and was not proved.

There doubtless is an age where the court can say as matter of law that a child cannot exercise any care under any circumstances. There also is an age where the court can say as matter of law that a minor is capable of exercising some care under circumstances like those in question. See in this connection Collins v. South Boston Railroad, 142 Mass. 301, 314. The limits of these two classes are not settled by our decisions. There are now and probably always will be cases where it fairly may be said (as it was said in the case at bar) that the child did not under the circumstances exercise any care, and yet it cannot be said as matter of law that an ordinarily prudent child of the age or having the capacity of the child in question (whichever is the correct statement) was capable or incapable of exercising care. Such cases must be left to the jury. In such cases the matter is not a matter of conjecture, and yet nothing more can be proved than was proved in the case at bar. In the case at bar it was proved that the plaintiff in question was "a lively child, active and energetic," four years and three months old. The circumstances calling for the exercise of care on his part were these: The accident happened on one of the main thoroughfares of Boston, on which the defendant had a double track, surface railway, (and if the plaintiff's evidence was to be believed) a car was running from fifteen to twenty miles an hour. This boy, while crossing this thoroughfare, walked at a "pretty lively" gait, or trotted "at a fair little jog" into the forward fender of the defendant's car. At the time he was behind another boy, who was slightly older. This made out a case for the jury. See in this connection Wright v. Malden Melrose Railroad, 4 Allen, 283; Munn v. Reed, 4 Allen, 431; Callahan v. Bean, 9 Allen, 401; Lynch v. Smith, 104 Mass. 52; Gibbons v. Williams, 135 Mass. 333; O'Connor v. Boston Lowell Railroad, 135 Mass. 352; McGeary v. Eastern Railroad, 135 Mass. 363; Marsland v. Murray, 148 Mass. 91; Slattery v. O'Connell, 153 Mass. 94; Creed v. Kendall, 156 Mass. 291; Grant v. Fitchburg, 160 Mass. 16; Powers v. Quincy Boston Street Railway, 163 Mass. 5; Hewitt v. Taunton Street Railway, 167 Mass. 483; McNeil v. Boston Ice Co. 173 Mass. 570; Butler v. New York, New Haven, Hartford Railroad, 177 Mass. 191; Walsh v. Loorem, 180 Mass. 18; Cotter v. Lynn Boston Railroad, 180 Mass. 145.

2. We are also of opinion that the question of the parents' negligence was for the jury.

The difficulty with the argument of the defendant's counsel here is that he has not told us what more (in his opinion) the parents were as matter of law called upon to do. Since the day was a rainy one, we cannot say as matter of law that it was not proper to keep the minor plaintiff in the house. Under the circumstances the lower hall cannot be said to be an improper place for the boys to play in although the front door was not locked. The front door was the common door of all three apartments and so not within the control of the boy's parents. Neither can we say that the mother ought to have left her washing to stand over the boys while playing, and the same is true as to the father, who was to go to work after supper and who was spending what was his night looking after the sick baby two and a half years of age. It is to be noted that on the uncontradicted testimony the boy "was always a good boy to mind," and was cautioned by both father and mother not to leave the entry; and also that within two minutes after the noise of their play ceased the father started to look for the boys, on being asked to do so by the mother who had kept herself where she could hear, and where, by going ten or twelve feet to the rail, she could look down and see them while they played in the entry. McGeary v. Eastern Railroad, 135 Mass. 363. Marsland v. Murray, 148 Mass. 91. Slattery v. O'Connell, 153 Mass. 94. Creed v. Kendall, 156 Mass. 291. Powers v. Quincy Boston Street Railway, 163 Mass. 5. Hewitt v. Taunton Street Railway, 167 Mass. 483. McNeil v. Boston Ice Co. 173 Mass. 570. Butler v. New York, New Haven, Hartford Railroad, 177 Mass. 191. Walsh v. Loorem, 180 Mass. 18. Cotter v. Lynn Boston Railroad, 180 Mass. 145. O'Brien v. Hudner, 182 Mass. 381. Mellen v. Old Colony Street Railway, 184 Mass. 399.

Exceptions overruled.