Arthur Jaehnig vs. J. G. & B. S. Ferguson Company

Massachusetts Supreme Judicial Court1908-02-26

197 Mass. 364

Summary · law.co

Holding. The judgment for the plaintiff is affirmed according to the parties' agreement. The court held that it was a jury question whether the child had abandoned the ball game before the accident occurred, and if so, whether his conduct reflected ordinary care for a boy his age.

A ten-year-old boy was struck by a delivery wagon operated by the defendant's employee while playing ball on a Boston street in violation of a city ordinance. The defendant argued that the child's unlawful play was a direct and proximate cause of the injury, barring recovery. The court held that the critical factual question was whether the child had abandoned his game and begun traveling toward his father's shop before being struck. If he had genuinely given up playing, then his earlier violation of the ordinance could not be considered a direct cause of the accident, even if his prior presence on the street resulted from that unlawful activity.

The court further held that if the jury found the child had abandoned the game, they should then assess whether his general conduct demonstrated the care expected of an ordinarily careful boy his age. The court determined there was sufficient evidence for the jury to reach a verdict on both questions, despite testimony suggesting the child was not exercising full due care. The evidence did not establish that an exceptional degree of vigilance regarding rapidly approaching vehicles would be expected from children of ordinary prudence.

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

Key issues

Whether a child's prior violation of an ordinance remains a proximate cause after abandoning the prohibited activity
Appropriate standard of care for children in traffic situations
Causation: distinguishing between direct causes and mere conditions preceding an accident

Procedural posture

The case proceeded to trial where a jury rendered a verdict for the plaintiff, and the defendant appealed the judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Kncwlton, C. J.

The plaintiff, a boy about ten years of age, was run over and injured on one of the public streets of Boston, by a delivery wagon in charge of one of the defendant’s servants.

There was evidence on which the jury might have found that the defendant’s servant was driving rapidly and negligently, and that this negligence .caused the accident.

The plaintiff had been playing ball on the street, in violation of an ordinance of the city of Boston, and there was evidence tending to show that one of his movements in the game brought him in collision with the team, and was a contributing cause of the accident. On the other hand, he testified that he had been called by his father, and at the time of the accident had given up the game, and was on his way to his father’s shop near by.

If his violation of a city ordinance was a direct and proximate cause contributing to the accident, as distinguished from a mere condition accompanying it, he cannot recover. Newcomb v. Boston Protective Department, 146 Mass. 596. But if he was injured after he had abandoned the game and had started to travel home, the mere fact that.he had been playing previously in violation of the ordinance, and might not have been there at that time except for his previous game, does not make his unlawful play a direct and proximate cause of the accident.

In the gamehe was bowling the ball and trying to catch it when it was returned. According to the testimony his father had called him twice, and soon after the second call the ball was bowled towards him, and went by him in the street. He started, walking in the direction of his father’s shop, which was also in the direction of the ball a few feet away, and was struck by the wagon before he had gone so far as the place where the ball was. The defendant argues that he was going to get the ball as a part of the game, and that the jury should not have been permitted to find to the contrary. But in one part of his testimony he said that he gave up the game, and started toward the corner of Ashley Street where his father was standing and where his father’s shop was. We are of opinion that it was a question of fact for the jury whether he had given up the game before he started to take the three or four steps which brought him in collision with the defendant’s wagon.

If the jury found for the plaintiff on that point, we are of opinion that it was also a question for them whether his general conduct, in reference to danger from teams in the street, was that of ordinarily careful boys of his age. The evidence falls short of showing a high degree of care, but it does not appear that there was much travel on the street, or that very great vigilance in reference to the possibility of being struck by a team being driven rapidly around the corner from a cross street would be expected from ordinary boys. While the testimony tends to show that he was not in the exercise of due care, we cannot say that there was not sufficient evidence for the plaintiff to present a question of fact for the jury.

Judgment for the plaintiff according to the agreement of the parties.