Richard L. Morey, administrator, vs. Gloucester Street Railway Company

Massachusetts Supreme Judicial Court1898-05-19

171 Mass. 164

Summary · law.co

Holding. The exceptions are overruled. The court affirmed the judgment for the railroad company, finding that the child's own careless conduct—running suddenly into the path of a visible and audible approaching car—barred recovery regardless of whether the motorman was grossly negligent.

A child eight years old was struck and killed by an electric streetcar on Main Street in Gloucester while running across the street. The motorman gave an alarm upon seeing the boy and stopped the car as quickly as possible, with evidence suggesting the vehicle was traveling at a moderate speed of eight to ten miles per hour or less. The boy had an unobstructed view of the approaching car and could hear it plainly, yet he darted rapidly across the street from the sidewalk to the tracks in front of the vehicle.

The court held that even assuming the motorman was not grossly negligent, the case failed on a separate ground: the child's own conduct fell below the standard of care expected of a reasonably prudent boy his age. The boy ran suddenly onto the tracks without apparent reason or excuse, covering the distance from sidewalk to rail in approximately one second. The court found his rapid dash in front of an approaching, clearly visible and audible car to be careless conduct that would ordinarily be condemned.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether motorman was grossly negligent in operating streetcar
Whether child's conduct met standard of care for a reasonably prudent boy
Comparative negligence and child's own carelessness as bar to recovery
Child's ability to perceive approaching danger

Procedural posture

The plaintiff, as administrator of a child's estate, appealed the trial court's ruling in favor of the railroad company.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Knowlton, J.

There was very little if any evidence of negligence on the part of the motorman. The testimony tends to show that, at about eight o’clock in the evening of July 24, an electric car was passing along the track on Main Street in the city of Gloucester, in the central part of the city; that the street was narrow, with narrow sidewalks, and a width of only twenty-seven feet for travel with teams between the curbstones ; that the railroad track was about in the middle of the street, and. the car was running at about the usual rate of speed, when the plaintiff’s intestate, who was eight years and one month old, and who lived with his mother in a tenement over a grocery store nearly opposite the place of the accident, was spoken to by his sister, a girl of fourteen years of age, andmade to understand that she wanted him to go into the house; and that he then started quickly to run across the street, and ran out diagonally in front of the car, where he was struck and killed. The evidence tended to show that the motorman gave a cry of alarm as soon as he saw the boy running before the car, and stopped the car as soon as he could. There was some evidence that the car was going a little faster than usual, but the highest estimate of the rate of speed testified to by any witness was eight or ten miles an hour. The whole testimony tended to show that it was going slower than that.

To recover under this statute, the plaintiff was bound to prove, not only that the motorman was negligent, but that he was guilty of gross negligence, which is recognized by the statute as something more than a mere want of ordinary care. Galbraith v. West End Street Railway, 165 Mass. 572. We do not find it necessary to decide whether there was any evidence of gross negligence on his part, because we think that the ruling should be sustained on another ground.

The evidence was undisputed, and the fact cannot be doubted that the car could be seen for a considerable distance as it was approaching. The boy’s view was unobstructed, and the sound of the coming car could be plainly heard. The railway had but a single track, and the distance from the curbstone of the narrow sidewalk to the nearest rail was only about twelve feet. According to the testimony of one of the plaintiff’s witnesses, the boy “ darted right out quickly, as quickly as most boys of his age are able to go ; that it did not take more than a second to go the ten feet from the sidewalk to the rail; that it all happened in the twinkling of an eye.” The language used by the other witnesses was similar, and there was no dispute that he ran rapidly from the walk to the track in front of the car. The evidence discloses no reason or excuse for his going, and we are of opinion that his conduct, judged by the standard of the care of boys of common prudence, was such as would generally be condemned as careless.

In its principal facts this case is similar to Hayes v. Norcross, 162 Mass. 546, where it was held that there was no evidence of due care on the part of the plaintiff, who was a much younger boy than the present plaintiff, and who ran quickly from the sidewalk and was struck by the fore legs of a horse, which was being driven at an ordinary rate of speed along the street, near the curbstone. See also Casey v. Malden, 163 Mass. 507; Mullen v. Springfield Street Railway, 164 Mass. 450.

Exceptions overruled.