Walukewich v. Boston & Northern Street Railway Co.

Morton, J.

We think that this case is governed by Kyle v. Boston Elevated Railway, ante, 260. The evidence leaves it uncertain whether the child ran on to the track after two of her playmates whom she was following, orwhether they turned and ran back to the sidewalk, and she started to run across the track alone. Some witnesses testify one way and some the other in regard to that matter. But whichever account of what happened is taken, the result is the same in regard to the question of the child’s due care. She started to run across the track in front of a rapidly approaching car only a short distance away without apparently taking any thought for her safety. The car was so near that she hardly had got upon the track when the car struck her. There was nothing to obstruct her view or to distract her attention and nothing but her age can be pleaded as an excuse for her conduct. But the fact that she was of tender age does not alone entitle the plaintiff to recover. The defendant is not an insurer. In order to entitle the plaintiff to recover, his intestate must have exercised such care as she was capable of. The difficulty with the plaintiff’s case is that she does not appear to have exercised any care at all.

The result is that the exceptions must be overruled in each case.

So ordered.