Schaffron v. Tuttle

Headnote

Negligence — child struck and run over by automobile — erroneous charge that if plaintiff had been an adult she would have been guilty of contributory negligence.

Schaffron v. Tuttle, 189 App. Div. 924 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 21, 1919, reversing a judgment in favor of defendants entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. Plaintiff was struck and run over by an automobile truck owned by defendants and being operated in their business by one of their servants. The Appellate Division held that the charge of the trial justice, wherein he stated, in substance, that if the plaintiff had been an adult instead of a child he thought he would have been justified in saying that he should have granted a nonsuit on the ground of contributory negligence, and in holding that on that ground the plaintiff could not recover, tended to prejudice the plaintiff’s case, and required a new trial.