Kelley v. Carl H. Schultz, Inc.

Headnote

Negligence — boy run over by team and wagon — evidence insufficient to establish negligence on part of defendant but establishing contributory negligence on part of plaintiff.

Kelley v. Schultz, Inc., 206 App. Div. 696 , reversed.

Appeal from a judgment, of the Appellate Division of the Supreme Court in the first judicial department, entered June 15, 1923, 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 defendant. The plaintiff, a boy who was thirteen years of age in July, 1922, was injured October 31, 1919, by coming in contact with a team of horses belonging to the defendant. He testified that at about four o’clock in the afternoon he came out of a stationery store on the westerly side of Columbus avenue, about three doors south of Eighty-fourth street, and “ started to go across ” said avenue. Two automobiles were standing at the curb on the westerly side of the avenue at this point, these automobiles being about ten feet apart. The plaintiff walked easterly between these two automobiles and looked “ a couple of times ” in both directions, he said, and proceeded to cross the part of the roadway between the automobiles and the

“ L ” pillars near the center of the street. Before he got to the “ L ” pillars and when he was about half way across he was hit by defendant’s horses approaching from the north, and received the injuries by the wheels of the wagon passing over him.