HAROLD F. KELLEY vs. BOSTON AND NORTHERN STREET RAILWAY COMPANY.
Negligence, Of child, In use of highway, Street railway.
Where, at the trial of an action against a street railway company for personal injuries received when the plaintiff, a strong, bright boy between five and six years of age, on a summer evening in 1910 during daylight was run into by a street car of the defendant, the plaintiff's evidence shows that he had been playing beside the street with other boys at a watering trough in which there was a turtle, that suddenly he seized the turtle and, pursued or followed by his companions, ran diagonally across the street without looking for cars until he reached the defendant's tracks, that a bystander called out a warning to him of an approaching street car, that he then paused a moment and was struck by the car which came to a stop within fifteen feet, that the car was in plain sight and that there was no other traffic in the street, it is proper to order a verdict for the defendant at the close of the plaintiff's evidence.
BY THE COURT. The evidence showed that the plaintiff, a strong, bright boy between five and six years old, on a summer evening in August, 1910, during daylight, was, with other boys, on the side of a street at a watering trough, in which there was a turtle. Suddenly he seized the turtle, and followed or chased by other boys, ran diagonally across the street, without looking for cars, until he reached the tracks of the defendant laid in the street, when some bystander, seeing his danger from a near by rapidly approaching car, called out to him. He then paused an instant, and was struck and injured by the car, which came to a stop within fifteen feet or thereabouts.
The car was in plain sight and there was no other traffic in the
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street. A verdict for the defendant was ordered rightly. [Note p450] Godfrey v. Boston Elevated Railway, 215 Mass. 432, and cases there collected. McManus v. Boston Elevated Railway, 216 Mass. 191. Mills v. Powers, 216 Mass. 36. Bothwell v. Boston Elevated Railway, 215 Mass. 467. Donahue v. Massachusetts Northeastern Street Railway, 222 Mass. 233.
Exceptions overruled.
J. P. Feeney, for the plaintiff, submitted a brief.
E. P. Saltonstall, (R. S. Pattee with him,) for the defendant.
FOOTNOTES
[Note p450] By Bell, J. The verdict was ordered at the close of the plaintiff's evidence.