WILLIAM MULLIN vs. JOSEPH F. FALLON.
Negligence, Contributory.
In an action for personal injuries sustained, after St. 1914, c. 553, went into effect, by a boy about ten years of age from being run down by a motor car driven by the defendant when the plaintiff was crossing a public square on foot, where the answer alleged that the plaintiff was not in the exercise of due care and where there was evidence that the plaintiff went across the square "on a dog trot" continuing in the same direction, and the plaintiff testified that when about to cross he looked up and down and heard no automobile horn and did not change his course from the time he left the curbstone, and there was evidence 'that the automobile changed direction and ran the plaintiff down; that it seemed to chase him," it was held that the plaintiff had a right to go to the jury on the question of his due care.
TORT for personal injuries sustained at about ten o'clock on the morning of August 23, 1914, a pleasant Sunday, from the plaintiff, a boy ten years of age, being run down by a motor car driven by the defendant when he was crossing Harvard Square at the junction of Harvard Street and Washington Street in Brookline. Writ dated November 18, 1914.
The answer, besides a general denial, contained an allegation that the plaintiff at the time of his injury was not in the exercise of due care. St. 1914, c. 553, took effect on May 21, 1914.
In the Superior Court the case was tried before Wait, J. There was evidence warranting a finding that the defendant was negligent. The evidence in regard to the exercise of due care by the plaintiff is described in the opinion. At the close of the evidence the defendant asked the judge to order a verdict for him. This the judge refused to do and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $3,119. The defendant alleged exceptions.
C. S. Knowles, for the defendant.
J. F. Scannell, for the plaintiff.
CARROLL, J. The plaintiff, a boy ten years of age, while crossing Harvard Square, Brookline, was struck and injured by a motor car
Page 215
driven by the defendant. The only question raised by the bill of exceptions is the due care of the plaintiff. The accident occurred August 23, 1914. The jury found for the plaintiff.
The defendant's contention was that, while he was proceeding outbound through Harvard Square and moving at about eight miles an hour, the plaintiff ran out from the sidewalk on the defendant's right and crossed the square without looking; that after he had passed beyond and in front of the defendant's car, he suddenly turned and stepped into the forward left hand side of the car. There was also evidence that the plaintiff went across the square "on a dog trot," continuing in the same direction, "that the automobile changed direction and ran the plaintiff down; that it seemed to chase him." The plaintiff testified that he looked up and down when about to cross, and heard no automobile horn, and did not change his course from the time he left the curbstone. On this evidence, the plaintiff's care was clearly a question for the jury. Creedon v. Galvin, 226 Mass. 140. See also Rasmussen v. Whipple, 211 Mass. 546; Shipelis v. Cody, 214 Mass. 452.
Exceptions overruled.