Opinion
October 2, 1916.
October 10, 1916.
Present: RUGG, C.J., LORING, BRALEY, CROSBY, PIERCE, JJ.
In an action by an administrator against a street railway corporation under St. 1907, c. 392, for causing the death of the plaintiff's intestate before the passage of St. 1914, c. 553, by running into him with a car operated by the defendant when he was between three and four years of age, where it appears that the intestate was in charge of a brother twelve years old, who without looking went with the smaller boy upon the track in front of the approaching car which was in plain sight a short distance away, the plaintiff cannot recover, because, his intestate having been too young to take care of himself, it is necessary to show the exercise of due care on the part of the custodian, of which there is no evidence.
TORT under St. 1907, c. 392, by the administrator of the estate of Suren Garabedian of Worcester, for causing the death of the plaintiff's intestate on November 18, 1912, when he was between three and four years of age by negligently running into him with a street railway car owned and operated by the defendant on Holden Street in Worcester. Writ dated July 22, 1914.
In the Superior Court the case was tried before Dana, J., who at the close of the plaintiff's evidence, which so far as is material is described in the opinion, ordered a verdict for the defendant; and the plaintiff alleged exceptions.
The case was submitted on briefs.
J.W. Sheehan, for the plaintiff.
C.C. Milton, J.M. Thayer F.H. Dewey, for the defendant.
The plaintiff's intestate having been too young to take care of himself and the injury having been received before the passage of St. 1914, c. 553, the plaintiff can recover only by showing the due care of the custodian. Casey v. Smith, 152 Mass. 294.
The record is barren of anything to indicate such care. The evidence is that the custodian, a brother twelve years old, went upon the tracks of the defendant with the deceased, without looking, in front of an approaching car in plain sight only a short distance away. The case is governed by Mills v. Powers, 216 Mass. 36, Kyle v. Boston Elevated Railway, 215 Mass. 260, Walukewich v. Boston Northern Street Railway, 215 Mass. 262, Russo v. Charles S. Brown Co. 198 Mass. 473, Murphy v. Boston Elevated Railway, 188 Mass. 8, Holian v. Boston Elevated Railway, 194 Mass. 74, O'Brien v. Boston Elevated Railway, 217 Mass. 130, Godfrey v. Boston Elevated Railway, 215 Mass. 432, Moran v. Boston Elevated Railway, 222 Mass. 438.
Exceptions overruled.