Kyle v. Boston Elevated Railway Co.

This is an action of tort to recover for the death of the plaintiff’s child, a boy five years and eleven months old, who was run over and killed on Huntington Avenue in Boston at about 7.25 o’clock in the evening of May 4,1906, by a car operated by the defendant. At the close of the evidence a verdict was ordered* for the defendant on the ground that the plaintiff’s intestate was not in the exercise of due care. The case is here on the plaintiff’s exceptions.

We do not find it necessary to consider whether there was evidence of gross negligence on the part of the motorman since we are of…