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Feinstein v. Brooklyn Heights Railroad

114 N.Y.S. 587 Court N.Y. App. Div. Decision date 1909-01-26 English

Delivered by GAYNOR, J.

Contents

Majority

p. 587
FEINSTEIN v. BROOKLYN HEIGHTS R. CO.
(Supreme Court, Appellate Division, Second Department.
January 26, 1909.)

Headnote

Street Railroads (§ 114[1] )—Injuries to Persons on Tracks—Evidence-Negligence.
In an action by a child against a street railroad company for injuries from being struck by a car, evidence held not to show that the company was negligent.
[Ed. Note.—-For other cases, see Street Railroads, Cent. Dig. §§ 243, 244; Dec. Dig. § 114.[1] ]
Appeal from Municipal Court of New York.
Personal injury action by Louis Feinstein, by Benjamin Feinstein, his guardian ad litem, against the Brooklyn Heights Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.
Argued before WOODWARD, JENICS, GAYNOR, RICH, and MILLER, JJ.
Francis R. Stoddard, Jr., for appellant.

The motion to dismiss at the close should have been granted as no negligence on the part of the defendant was shown. The plaintiff was about 7 years old. He testified that he walked across the street and was hit by the fender, and again that he ran across. It was in the middle of the block. The motorman testified that he saw the plaintiff standing at the curb, and that he ran across; that the car was about 20 feet from the place where the plaintiff was hit when he started to run; that he immediately put on his brakes, and brought the car to a stand about 10 feet after the fender hit the plaintiff. A passenger corroborated him. The car was not going at an excessive speed. The plaintiff was not seriously hurt.

The judgment should be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.