Eshenwald v. Suffolk Brewing Co. 241 Mass. 166. Forzley v. Bianchi, 240 Mass. 36. Mercier v. Union Street Railway, 230 Mass. 397, 403. He was walking on a sidewalk where he had a right to be, and he justly might rely to a considerable extent on the expectation that no one would drive a motor vehicle across that sidewalk, even at a private driveway, without giving seasonable warning and stopping if necessary in order to avoid a collision. Moreover, the decedent was in the care of his elder sister who might be found to be a competent custodian and to have acted throughout with due care. Direnski v. Eastern Massachusetts Street Railway, 244 Mass. 313, 316. McDonough v. Vozzela, 247 Mass. 552, 556. The case at bar is quite distinguishable on this point from the numerous cases on which the defendants rely, but it is not necessary to review them one by one for the purpose of distinguishing them.
Butler v. New York, New Haven Hartford Railroad, supra. Sullivan v. Boston Elevated Railway, 192 Mass. 37. Dowd v. Tighe, 209 Mass. 464. Clark v. Martin, ante, 60. The judge instructed the jury to the effect that Alice was too young to be capable of exercising care. See Direnski v. Eastern Massachusetts Street Railway, 244 Mass. 313; McDonough v. Vozzela, 247 Mass. 552, 555, 556; McCoy v. Boston Elevated Railway, 249 Mass. 12; Clark v. Martin, supra. The record does not show that an exception was taken to this instruction.
" There was evidence upon which it could have been found that he exercised the degree of prudence to be expected of a child of his years. Sullivan v. Boston Elevated Railway, 192 Mass. 37. Ayers v. Ratshesky, supra. Direnski v. Eastern Massachusetts Street Railway, 244 Mass. 313. McDonough v. Vozzela, 247 Mass. 552, 555, 556. McCoy v. Boston Elevated Railway, 249 Mass. 12. Clark v. Martin, ante 60.
Moreover, the plaintiff, while too young to have much prudence, cannot be pronounced as matter of law incapable of exercising any care in the circumstances confronting him. All these factors required the submission to the jury of the issue of the due care of the plaintiff, his custodian and his mother. Sullivan v. Boston Elevated Railway, 192 Mass. 37. Beale v. Old Colony Street Railway, 196 Mass. 119. Dowd v. Tighue, 209 Mass. 464. Ayers v. Ratshesky, 213 Mass. 589. Travers v. Boston Elevated Railway, 217 Mass. 188. McCulloch v. Needham, 217 Mass. 227. Tannian v. Amesbury, 219 Mass. 310. Sughrue v. Bay State Street Railway, 230 Mass. 363. Eshenwald v. Suffolk Brewing Co. 241 Mass. 166. Direnski v. Eastern Massachusetts Street Railway, 244 Mass. 313. The case at bar is distinguishable from cases like Holian v. Boston Elevated Railway, 194 Mass. 74, Walukewich v. Boston Northern Street Railway, 215 Mass. 262, Kelley v. Boston Northern Street Railway, 223 Mass. 449, Garabedian v. Worcester Consolidated Street Railway, 225 Mass. 65, Gallagher v. Johnson, 237 Mass. 455, and Sullivan v. Chadwick, 236 Mass. 130. 2.