JAMES E. FERRIS, administrator, vs. ARTHUR L. TURNER (and a companion case [Note p555-1]).

LUMMUS, J. These are actions of tort under G. L. (Ter. Ed.) c. 229, Section 5, as amended, brought by the administrator of the estate of Cynthia L. Ferris, a girl six years and nine months old, to recover for her death on July 15, 1943, when she was struck in Malden by a large tractor or trailer truck operated by the defendant Turner as a servant of the defendant Maine Freightways. There was a verdict for the plaintiff in each case. Exceptions taken by the defendants bring the cases here.

The evidence was conflicting as to the speed of the truck, as to the direction in which the child was crossing, and as to whether the child was walking or running. According to the evidence most favorable to the plaintiff, what happened was this. The truck had come from Maine, and shortly after five o'clock in the afternoon was travelling southerly toward Boston on Broadway in Malden, and was going downhill on a considerable grade as it approached an intersecting street called Salem Street. The truck was travelling at the rate of from forty to forty-five miles an hour, and crossed Salem Street without slowing down. The child was crossing Broadway from east to west near a crosswalk along the south side of Salem Street, and was walking, not running. Two other children were crossing with her. Traffic was not congested. No evidence required a finding that the operator's view of the child was obstructed. At Salem Street the operator looked to the right instead of to the left, and failed to see the child until she was immediately in front of the truck, a little to the west of the middle of Broadway, so close that he could not avoid her. He put on his brakes, and the truck skidded sixty-seven feet before stopping.

We think there was evidence for the jury of the negligence of the operator. The evidence did not as matter of law establish negligence on the part either of the child, or of her parent or custodian. There was no error in denying the motions of the defendants for directed verdicts in their favor.

The defendants excepted to the admission of evidence that the child had often been instructed to look for automobiles

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both ways before crossing a street, to cross only on a crosswalk, and never to run. The judge admitted this evidence "solely on the capacity of the child to exercise care." A child of the age of the child in question may be found as a matter of fact, but may not be ruled as a matter of law, capable of such care for her own safety that it is not negligence on the part of a parent or custodian to permit her to cross a street unattended. Hayes v. Norcross, 162 Mass. 546. Miller v. Flash Chemical Co. 230 Mass. 419. Bengle v. Cooney, 243 Mass. 10, 13. Pinto v. Brennan, 254 Mass. 298, 301. Hirrel v. Lacey, 274 Mass. 431. Stacy v. Dorchester Awning Co. Inc. 290 Mass. 356. McKenna v. Andreassi, 292 Mass. 213, 219, et seq. Schneider v. DeChristopher, 301 Mass. 241. Birch v. Strout, 303 Mass. 28. Friedman v. Berthiaume, 303 Mass. 159, 163, 164. See now G. L. c. 231, Section 85D, inserted by St. 1945, c. 352, Section 1, effective on September 1, 1945, abolishing imputed negligence in cases of injury to a child.

For all that appears in the bill of exceptions, the defendants may have contended at the trial that there was negligence on the part of a parent or custodian of the child in permitting her to cross the street unattended. Upon such an issue, the training in care for her own safety that the child had received, as well as her maturity and intelligence, was relevant. The bill of exceptions does not show that counsel for the plaintiff was permitted improperly to argue that because the child knew what due care required and was obedient, she probably obeyed the instructions given her and used due care for her safety in crossing the street. Such reasoning is generally held inadmissible. [Note p557-1] McDonald v. Savoy, 110 Mass. 49. O'Hare v. Gloag, 221 Mass. 24, 29, 30. Luiz v. Falvey, 228 Mass. 253, 255. McGlinchy v. Henderson, 240 Mass. 432. Kenyon v. Hathaway, 274 Mass. 47, 51,

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52. Conrad v. Mazman, 287 Mass. 229, 235, 236. Belisle v. Lisk, 16 Fed. (2d) 261. In the present cases the judge, at least in his discretion, might admit the evidence for the purpose for which he admitted it.

The defendants excepted to the admission in evidence of a photograph of the child taken shortly before her death. The photograph shows a smiling child, apparently healthy and intelligent. The defendants contend that the photograph probably misled the jury into assessing punitive or compensatory damages, instead of damages assessed according to the degree of culpability of the operator of the truck, as required by G. L. (Ter. Ed.) c. 229, Section 5, as amended. See Commonwealth v. Gray 314 Mass. 96, 98. But we think that the appearance of the child, as shown by the photograph, had some tendency to show that the child was sufficiently mature and intelligent to be allowed to cross a street unattended, and that there was no error of law in the admission of the photograph. Whether its admission was a wise exercise of discretion could not be raised by an exception. Bartley v. Phillips, 317 Mass. 35, 42-44.

The defendants excepted to the admission of evidence of the gruesome details of the result of the impact of the truck upon the child's body. There had been evidence of the size, speed and movements of the truck. It was unquestioned that the truck could and did kill the child. The effect of the impact upon the child's body shed no light upon the degree of culpability of the operator. Exclusion of such evidence would have been the better course. But the burden is upon an excepting party to show prejudicial error upon the face of the record. Furbush v. Connolly, 318 Mass. 511, 512. Lane v. Epinard, 318 Mass. 664, 667, 668. We see nothing to show that the admission of this evidence led the jury astray. The charge is not reported. We must assume that the jury were correctly and effectively instructed to measure the damages by the degree of culpability, and that they followed that instruction. Curtin v. Benjamin, 305 Mass. 489, 494. Gaines v. Ratnowsky, 311 Mass. 254, 259. Goltz v. Besarick, 313 Mass. 14.

Exceptions overruled.