Prince v. International Railway Co. — 220 N.Y. 561

Majority

p. 561

Nicholas Prince, an Infant, by Antonio Prince, His Guardian ad Litem, Respondent, v. International Railway Company, Appellant.

Headnote

Prince v. International Ry. Co., 171 App. Div. 974 , affirmed.

(Argued December 13, 1916;

decided January 9, 1917.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 11, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant. The plaintiff testified that he was ten years old, and on the evening of August 16, 1914, in company with two other boys, was at the vicinity of the city line and East Delavan avenue in the city of Buffalo; that they were playing horse, and he had a rope about seven and one-half feet in length tied under his arms and was being driven by another boy; that there was a pay-as-you-enter street car standing at the city line ready to leave on its return trip; that as he ran past the rear platform of the car he jerked on the rope and it became loosened from the other boy’s hands and its ends went upon the platform of the car; that thereupon the conductor, who was standing on the rear platform, put his foot upon the rope, then picked it up, put it through the handle of the car and rang the bell for the car to start; that the car started and he was thrown and dragged a block before the car stopped.

Harold S. Brown for appellant.

Wortley B. Paul for respondent.

Judgment affirmed, with costs; no opinion.

p. 562

Concur: Hogan, Cardozo and Pound, JJ.; Hisoooic, Ch. J., Chase, Collin and Cuddebaok, JJ., concur on the ground that the question whether the act complained of was within the scope of the conductor’s authority was not sufficiently raised at the trial.