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Oelerich v. New York Condensed Milk Co.

6 N.Y.S. 127 Court N.Y. Gen. Term Decision date 1889-07-02 English

Delivered by Barnard, P. J.

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p. 127
Oelerich v. New York Condensed Milk Co.
(Supreme Court, General Term, Second Department.
July 2, 1889.)

Headnote

Master and Servant—Negligence oe Servant—Liability of Master.
Where it appears that defendant’s servant, in the course of his employment, drove defendant’s wagon, which was so constructed that the driver could only see an object some 20 feet in front of the horses’ heads, rapidly around a corner in a thickly populated part of a city, and ran over plaintiff, a boy six years old; and that the servant had been drinking,—a verdict for plaintiff will not be disturbed on appeal.
Appeal from circuit court, Kings county.
Action by John Oelerich, an infant, by Oswald Leuscher, his guardian ad litem, against the Hew York Condensed Milk Company, for personal injuries. A judgment was entered on a verdict for plaintiff, and a motion for a new trial on the minutes denied, and defendant appeals.
Argued before Barnard, P. J., and Dyichan and Pratt, JJ.
William W. Wiles, Jr., ( William W. Wiles, of counsel,) for appellant. M. J,. Towns, for respondent.

The evidence fully sustains the verdict of the jury in this case. on a quick trot around a corner in a thickly populated portion of Brooklyn, and ran over a boy under six years of age. The wagon was so constructed that the driver could only see an object some 20 feet or more in front of the horses’ heads. The driver had been drinking intoxicating liquors. It was negligence to drive a wagon when danger could not be seen. It was especially dangerous and negligent to drive so fast when the driver could not see the ground within 20 feet of his horse; and the habit of strong drink, or a loss certain by a single instance of indulgence, must be imputed to the master under the settled law in respect to master and servant while the servant is doing the master’s business. The question of the contributory negligence of the child is one for the jury. This is the general rule, and especially is the rule where the tender age of a child is to be considered with reference to the degree of prudence and caution required of him under the circumstances. Kunz v. City of Troy, 104 N. Y. 344 , 10 N. E. Rep. 442 . The judgment should therefore be affirmed, with costs.

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