This is an action of tort brought by the plaintiff, a minor, against the defendant to recover damages for injuries sustained by the plaintiff through the alleged negligence of the *63defendant on August 7, 1918. The injury was the result of a collision on Massachusetts Avenue, Cambridge, between a team, owned and driven by the father of the plaintiff, on which the plaintiff was riding, and a car of the defendant. The case was tried to a jury with an action by the father of the plaintiff against the same defendant to recover damages for injuries to his wagon, which were the result of the same collision. The answer of the defendant was a general denial, and the further answer that the plaintiff “is not entitled to maintain this action for the reason that at the time or times mentioned in [his] said declaration the plaintiff was not in exercise of due care.” The defendant did not request a directed verdict for the defendant. In each case the jury returned a verdict for the plaintiff.
The evidence of the negligence of the defendant was ample to justify the submission of that issue to the jury. The evidence from which the due care or absence of due care of the plaintiff must be found presents questions of fact for the jury; and the evidence would not justify a ruling of law that there was due care or an absence of due care which in law contributed to the harm and injury of which either plaintiff complains.
The only exception taken by the defendant relates to the charge of the trial judge as to the due care of the plaintiff. In this regard the judge instructed the jury as follows: “The case of the son stands a little bit differently. The son was engaged with his father in what we call a common enterprise, so that the son can recover only in case the father himself can recover, namely, in case the father was not lacking in due care, and in case the defendant was careless. That is, if the father is not entitled to recover because he was not careful, then the son would not be entitled to recover because he was the driver of the team, he was engaged by jiis father, he was a servant of his father, did work for his father. He was not a guest in the proper sense of the term, was being engaged in a common enterprise; the care of one, the care of the father may be imputed to the son, and what I mean by that is that the son’s case depends upon the care or want of care of his father, and the care or want of care of the defendant’s motorman. If William Barber is entitled to recover, then the son would also be entitled to recover.” At the conclusion of the charge the following colloquy took place:
*64“ The defendant’s counsel: — In the case of the boy there is no presumption that the father is exercising due care.
“ The judge: — No, I said his case depended upon the due care of the father.
“ The defendant’s counsel: — If your Honor will save my exception. The boy must himself be in the exercise of due care.
“The judge: — He is engaged in common enterprise, it is the care of the person who has charge of it.
“The defendant’s counsel:- — -If he is negligent himself, seeing the conditions there if he is negligent himself he cannot recover.”
If we assume without deciding that the relation of father and minor son was that of master and servant, or that of persons engaged in a common enterprise, as the judge ruled without objection, and if we assume that the negligence of a parent as a matter of law under circumstances like those in this case can be imputed to a normal child, over fourteen years of age, as the judge also ruled without objection, we think the minor plaintiff was not entitled to a verdict upon proof of the due care of the father, if the jury upon the evidence should find the minor plaintiff was personally negligent. We are of opinion the due care of the plaintiff was an issue which should have been submitted to the jury, and that the exception, therefore, must be sustained.
Exceptions sustained.