Opinion
October 24, 1905.
November 29, 1905.
Present: KNOWLTON, C.J., LATHROP, LORING, BRALEY, SHELDON, JJ.
If a child three years of age, attempting to cross a street as an open electric car is approaching, darts behind a wagon standing by the curb and strikes the running board of the car which is going at a moderate speed, there is nothing to show negligence in the operation of the car, and the child if injured cannot maintain an action against the railway company.
It is no evidence of negligence on the part of a street railway company that the gong was not sounded on a car at a place where it was not usual to sound it and where there was nothing in sight in the street for two hundred yards.
A.G. Weeks, for the plaintiff.
J.M. Swift, for the defendant.
This is an action of tort for personal injuries sustained by the plaintiff, a child a little less than three years of age, by being struck by an open electric car. At the trial in the Superior Court, at the close of the plaintiff's evidence, the judge directed a verdict for the defendant; and the case is before us on the plaintiff's exceptions.
Without stopping to consider whether the case does not fall within Cotter v. Lynn Boston Railroad, 180 Mass. 145, on the question whether there was due care on the part of the parents of the child, or of the guardian, a boy of fifteen in whose care the child was left, we find no evidence of negligence on the part of the defendant. A wagon drove up in front of the house where the plaintiff lived, shortly before the car came along. The plaintiff was then on the sidewalk, near the gate leading into the yard. There was a space of a foot and a half between the wagon and the nearest rail of the track. The plaintiff, attempting to cross the street, darted behind the wagon and struck the running board of the car, and sustained the injuries complained of. The car was going at a moderate speed, and was quickly stopped.
The plaintiff contends that the gong should have been sounded; but there is no evidence in the case that it was a usual place to sound the gong. There was no occasion to sound it. As the car approached there was nothing in sight for two hundred yards, and there were no children in the street. See Bartlett v. Worcester Consolidated Street Railway, ante, 360.
Exceptions overruled.