This is an action of tort to recover damages for" the death of the plaintiff’s intestate, Robert G. McCoy, a boy four years and seven months old, who was struck and killed by one of the defendant’s cars on a public highway in Somerville. “ The plaintiff did not rely upon the custody of the parents, but solely upon the boy’s own care.” The case was submitted to the jury under instructions to which no exception was taken. The jury found for the plaintiff, and the case was reported to this court under the stipulation that if the plaintiff was entitled to go to the jury, judgment is to be entered for the plaintiff; otherwise, judgment is to be entered for the defendant.
One of the plaintiff’s witnesses testified that when he first saw the boy he was standing near the sidewalk; that “ then the boy started to cross the street, and he just got one foot on the track and he was struck; ” that “ he had no chance to cross the street; ” that “ he started to walk across the street and kept right on until the car struck him; ” that “ he kept walking all the time.” He further testified that before the accident an automobile was upon the highway going toward Boston; “ that the boy kept going forward, and was prevented from returning by an automobile passing behind him.” In these circumstances in the opinion of a majority of the court the boy’s due care was a question of fact for the jury; and it could not be said that the only rational inference from all the evidence was that he failed to exercise due care. The case is governed by Mercier v. Union Street Railway, 230 Mass. 397, Burns v. Oliver Whyte Co. Inc. 231 Mass. 519, 521. Blood v. Ansley, 231 Mass. 438, 442. Harlow v. Worcester Consolidated Street Railway, 248 Mass. 572.
*14There was evidence for the jury on the question of the negligence of the defendant’s motorman. According to the report judgment is to be entered for the plaintiff in the sum of $1,500.
So ordered.