REGINA FLYNN vs. F. W. WOOLWORTH COMPANY.

JOSEPH BARRETT vs. H. P. HOOD & SONS, INC.

338 Mass. 789

January 9, 1959

Exceptions overruled. The plaintiff, about five and one half years of age, was playing in the vicinity of the defendant's parking lot where a milk truck loaded with one hundred ten cases of milk was backing slowly -- about a mile an hour -- to park with some of the other trucks of the defendant. According to his own testimony the plaintiff, with three or four companions who were playing in the area in which the truck was proceeding to park, ran to meet the truck, the plaintiff giving directions to the operator as to the manner of backing. He then went to the rear of the truck and attempted to join his companions who were then, unknown to the driver, sitting on the rear floor which projected from the truck, but he was too short to climb upon the step. He caught hold of the iron rail used by the operator for the purpose of access to the interior of the truck, but the plaintiff's legs were too short to reach the ground and he held on for a short time with both feet in the air, let go of the rail, and was run over by the right rear wheel of the truck. Whether the accident occurred on the land of the defendant or that of an abutter is irrelevant in view of our opinion that in the circumstances the plaintiff was a licensee on the truck to whom the defendant owed the duty merely to refrain from wilful, wanton or reckless conduct tending to expose him to danger. Baines v. Collins, 310 Mass. 523 , 524. Sheehan v. Goriansky,

Page 790

 317 Mass. 10 , 14. Scott v. Boston Elev. Ry. 318 Mass. 31 . On the evidence most favorable to the plaintiff we are of opinion that he failed to prove such conduct on the part of the defendant or its employees.