The plaintiffs excepted to the direction of verdicts for the defendant in this action of tort brought by a minor and his father to recover damages resulting from an accident which occurred about 5 P.M. on December 17, 1949, when the minor was struck by an automobile operated by the defendant on Union Avenue in Framingham.
Union Avenue runs east and west and is 50 feet wide from curb to curb. Otis Street intersects the southerly side of Union Avenue about opposite Eden Street which enters the northerly side of Union Avenue. The defendant was travelling westerly along the avenue at the rate of 25 miles an hour with his right wheels 3 or 4 feet from the curb of the northerly sidewalk. The headlights of his automobile were on and showed the road ahead for 200 to 300 feet and fanned out 3 or 4 feet on each side. The avenue was straight for one half a mile in the direction from which he came.
The minor plaintiff, hereinafter referred to as the plaintiff, was between 7 and 8 years of age. He had been to a moving picture theatre and was travelling westerly along the southerly sidewalk of the avenue, intending to go to his grandmother's house which was located on the easterly side of Eden Street, a short distance from the avenue. He received a head injury at the time of the accident, and the last thing previous to the accident that he remembered was stopping upon the southerly sidewalk to look at some photographs which were exhibited on a stand by the sidewalk in front of a studio a little over 800 feet easterly from the place of the accident. Besides a head injury, he also sustained a bruise to his right hip.
The defendant does not contend that the plaintiff was guilty of contributory negligence and the only question argued by the defendant is that there was no evidence of any negligence on his part. The jury saw and heard the plaintiff testify. The plaintiffs were entitled to have the jury consider the evidence in the light most favorable to them. The jury could accept as true his testimony that he intended to go to his grandmother's as he travelled along the southerly sidewalk of the avenue in the direction of her house. They could find that that intention continued up to the time of the accident. Commonwealth v. Billings, 97 Mass. 405. Commonwealth v. Dearborn, 109 Mass. 368, 370. Callan v. Callan, 280 Mass. 37, 41. Galdston v. McCarthy, 302 Mass. 36, 37. Conroy v. Fall River Herald News Publishing Co. 306 Mass. 488, 493.
We think the negligence of the defendant as shown by the evidence presented a question of fact which should have been submitted to the jury. D'Ambrosia v. Brest, 302 Mass. 316. Morton v. Dobson, 307 Mass. 394, 398.
In Murphy v. Boston & Maine Railroad, 319 Mass. 413, we held that the jury would have a right to infer that the intestate, in accordance with an intention expressed shortly before, was travelling along an unguarded, unlighted catwalk which was the usual course to take to resume his employment, when he fell into a river and drowned. The instant case is stronger than the case cited, even if it involved the Federal standard of submitting a case to a jury, for in the latter case the negligence of the defendant consisted of the dangerous condition of its premises and the causal connection between this condition and the death rested entirely upon circumstantial evidence. In the case at bar, it is undisputed that the plaintiff was injured by being struck by the operation of the defendant's automobile, and, the manner of its operation being fully disclosed in the testimony, a jury could rightfully come to the conclusion that the defendant was negligent. The instant case is also stronger than Barow v. Modoono, 325 Mass. 522,
There is much more in this case than there was in Jabbour v. Central Construction Co. 238 Mass. 453, and Nager v. Reid, 240 Mass. 211, upon which the defendant relies.