JOSEPH SULLIVAN, JR., vs. BOSTON ELEVATED RAILWAY COMPANY. JOSEPH SULLIVAN vs. SAME.

TWO ACTIONS OF TORT , the first by a boy, four years and three months old when injured, for personal injuries from being run over by a car of the defendant, and the second by the boy's father to recover for the loss of his services and for expenses resulting from the accident. Writs dated November 12, 1901.

In the Superior Court the cases were tried together before Gaskill, J.

One Moran, a witness for the plaintiffs, testified that he was looking out the window of a store on Dorchester Avenue, on September 18, 1901, the day of the accident; that he saw two boys, one of whom was the minor plaintiff, leave the sidewalk on the opposite side of the street and start directly across; that they were walking pretty lively; that the other boy was ahead; that they looked pretty close; that a north bound car was coming along at a high rate of speed, from sixteen to twenty miles an hour; that the fender of the car hit the child and knocked him over, and the rear truck ran over him and cut his leg off; that

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the witness did not know whether the forward truck ran over the boy, but certainly saw the hind truck go over his leg; that there was no other car in sight going either way; and that this car kept on to the next crossing, from two hundred to two hundred and twenty-five feet away.

One Bradley, a witness for the plaintiffs, testified that he was on Dorchester Avenue, going toward Mount Vernon Street; that he saw two little boys come around the corner of Mount Vernon Street and come running down Dorchester Avenue on the sidewalk; that after they got a little down the avenue they stepped from the curb to cross the street; that the car had then just crossed Mount Vernon Street, from one hundred and twenty-five to one hundred and thirty feet away; that he noticed the car coming and turned around to see how they were getting along; that he saw the boys going at a fair little jog; that the plaintiff crossed the nearer track and then was struck by the fender on the nearer side of the front; that he spun around and fell and went under the car; that the car was going at an awful rate of speed, from fifteen or twenty miles an hour; and that it did not slacken its speed from his first view of it until the boy was hit and did not stop until it reached Harvest Street.

Mary A. Sullivan, the mother of the boy, testified "that she lived at 36 Mount Vernon Street, which is the second building from the corner of Dorchester Avenue. They lived in the third story. Three families occupy the building and all use the same entrance. She had three children at the time of the accident. The oldest was six, the plaintiff was four years and three months, and the third child was twenty-one months younger than the plaintiff [two and a half years of age]. On September 18 it was raining. The baby was not very well. Her husband was at home. She was washing when the accident happened — washing at the tub — and her back was toward the door. The plaintiff had been playing in the house with Charlie Dunn, who had come in to play with him. They played around a little while and got tired and she allowed them to go down to the front entry in the lower story, which was a large, square place, where they were accustomed to play. She could see them and she could hear them all the time they were playing there. She left the tub every few minutes and went and looked down. She

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could look from the top of the stairs down in the front entry and hear them and see them play. She could hear them while she was at the tub. They were there fifteen or twenty minutes. During that time they had both come up and got a piece of bread and butter and then went down and played again, and the witness had gone to the top of the stairs and looked down and could see them and hear them playing. Finally she missed them and she called to his father to go down and see where the plaintiff was. It was not more than a couple of minutes, she believed, when, because it was so quiet all of a sudden, she missed them, not hearing them, and went and looked and they were not there. The door of her kitchen was open into the hallway. It was a very small kitchen which opened into a small entry and that opened into the hallway. It was perhaps ten or twelve feet from where she was washing to the rail where she looked over. She told her husband to go and see where the children were, but finally, not hearing him, wiped her hands and started to go down, and as she did met two of the neighbors coming to tell her about the accident. While she was washing, her husband was in the front room with the baby. She had given the children permission to stay in the entry and play. At that time the hall door was closed. The plaintiff was as large as any child of four years at that time."

On cross-examination she said "that the plaintiff was a lively child, active and energetic; that Charlie Dunn lived on Mount Vernon Street; that her husband hadn't anything to do that afternoon; it was his time off. He was going to work after supper. He was there in the house looking after the children and had nothing else to do. There were four rooms in their apartment. The front room overlooked the street and he was in that room. If you looked out the window you could look up and down the street but there was a stoop over the front door that prevented your seeing the steps. Charlie Dunn came in through the front hall door. It was 'uncatched.' It was not fastened. Any little boy could open it. Of course, it was just as easy for these little boys to get out as it was for Charlie Dunn to come in. She let them go down to the lower floor, knowing that the door was such that they could easily open it. She never allowed the plaintiff to go out when it rained. The

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door was such that they could easily get out if they escaped her observation for a moment. Charlie Dunn was an active boy, too. They were friends; they always played together when outdoors. Charlie Dunn lived on the other side of Mount Vernon Street. To get to his house they would have to go outside and cross the street. She had lived in that neighborhood eight years and three months. The baby was fussy. His teeth troubled him. He did not have to have the doctor or anything of that sort and the baby was up and dressed. Her husband could have stepped out or down the stairs. He was in the front room. It opened on the hallway. While she was busy with washing, her husband was in the front room with the door closed between him and the hallway. The front hall door where the boys were playing opened upon the street, so if they opened the door that Charlie Dunn opened when he came in they would be right out there, ready to go out on the street. It was not cold weather. The plaintiff was fully dressed, but not in the ordinary way for going out. He had on the same suit of clothes he wore every hot, sunshiny day to go out and play. He had a little jacket on because the entry was damp. If she was going to send him out on a wet day she would dress him in a coat. He had his cap on. He wore it most all the time in the house. At her washing tub she had a scrubbing board and was busy all that afternoon. It made very little noise; she could hear the children. She told her husband she would look after them. He was taking care of the other child and you can't neglect one to take care of others. They had lived in that neighborhood eight years and she knew there was a double line of electric car tracks on Dorchester Avenue. It was one of the main thoroughfares of the city and the cars passed there frequently. She did not send the plaintiff across because she thought it was dangerous. She thought it was dangerous because of the travel there and she knew well if he got out there he would be in danger. If he should disobey and go out the door she could not catch him without going down two flights of stairs. He never stayed out more than a couple of minutes at a time any time. She always lived on these stairs, going up and down on them, watching the children in the entry, to see they were safe, because any mother is always nervous; she always kept them under her eye."

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Joseph Sullivan, the father of the plaintiff in the first case and the plaintiff in the second case, testified "that on the day of the accident he was not working; he was at home; he stayed in the house all day. In the afternoon he was holding the baby in the front room. The baby wasn't well and he was rocking him. His wife was washing. At some time, his wife came in and spoke to him about the plaintiff. About five minutes before that he had seen the boy come up and get a piece of bread and butter, then he heard him going downstairs and did not see him again. Later, his wife came in and said she had missed the plaintiff and that he had better go down and see where he was. He was then about the centre of the room in a rocking chair, rocking in his arms the baby Frank. He went down cellar and did not find him, so he went out on the sidewalk and saw a crowd and learned that the plaintiff had been run over."

On cross-examination this witness said "the baby was sick with cramps and pains in his stomach and they gave him castoria; he was not holding the baby all the afternoon. The baby would lie down on the couch there. If the witness wanted to go out he could have gone out. The plaintiff did not want to go out on account of the child ailing. He knew the minor plaintiff was downstairs, and that Charlie Dunn had come to play with him and he knew that the front door was very seldom fastened and supposed a little boy could open it without difficulty and that his little boy was down there playing in the hall right near the front door. He knew that Dorchester Avenue was a dangerous place. He heard the mother tell the boy to be sure and stay in the entry. He told the boy not to go out of the entry on to the door steps. You don't know what a little child will do, but he was always a good boy to mind. He did not think he would go out when the witness had told him not to. The door of the front room where the Witness was was ajar when the boys went down with their bread and butter and he hollered out to his son not to go out of the entry."

There were other witnesses for the plaintiffs. There were also witnesses for the defendant.

At the close of the evidence the defendant asked the judge to make the following rulings:

1. Upon all the evidence the plaintiff cannot recover.

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2. There is no sufficient evidence that the plaintiff was incapable of exercising due care.

3. There is no evidence that the plaintiff did exercise due care. On the contrary, his conduct shows lack of any care whatever.

4. There is no sufficient evidence of care on the part of the boy's parents.

The judge refused to make the first, second and fourth rulings requested, and submitted the cases to the jury. At the beginning of the charge the judge said:

"Well, in the first place you have got to consider the boy's age. That is one of the material things here. If that boy had been of an age, or was in fact of an age where he could appreciate the situation in which he was, was competent to exercise any degree of care for his own protection, then there is no evidence that he did exercise any care. So that, the first proposition being that the plaintiff must establish by a fair preponderance of the evidence that the boy was incompetent to exercise any care, you come to that as the first question."

The jury returned verdicts for the plaintiffs, in the first case in the sum of $12,000, and in the second case in the sum of $3,000. The defendant alleged exceptions.

C. F. Choate, Jr., for the defendant.

C. C. Johnson, for the plaintiffs.