Callahan v. Bean

Hoar, J.

The question raised upon the bill of exceptions must be governed by the decision in Wright v. Malden & Melrose Railroad, 4 Allen, 283, a case which this much resembles, unless some material distinction can be found between them; and we can find none which affects the point at issue.

The plaintiff was two years and four months old ; undoubtedly, therefore, of so tender an age as to be incapable of taking care of himself. He was entitled to the care of others; he was under the care of his father just before he received the injury for which the suit is brought; and if, before that happened, his father ceased to take suitable care of him, and that neglect contributed to produce the injury complained of, he cannot maintain the action. The only question then is, whether he offered any evidence to show that his father was taking reasonable care of him at the time he was run over. The only evidence was, that he had several times been across the street alone to buy candy; that his father, who had gone across the street with him for that purpose, and who was to return directly to his breakfast, sent him back alone, first looking up and down the street and seeing that there was nothing dangerous in sight, and then turning away and exercising no further oversight or care over him. The street between the curbstones was eighteen feet w'de, and the candy shop was not opposite the plaintiff’s home, but thirty feet further up the street. The father left the compliance with his directions to depend wholly upon the intelligence, activity and obedience of an infant of little more than two years old. The child had no present protection, and the only provision for his safety was the previous directions given him, which, understood and strictly followed, might have been sufficient. But who could say what effect the mere sight or sound of a rapidly approaching horse might produce upon the mind or motions of such a child? Or when, or with what result, the idea of waiting for his father might occur to him ?

There was no evidence of sufficient care, nor of a sufficient reason for the want of it; and so no case for the jury.

Exceptions overruled.