Oelerich v. New York Condensed Milk Co. — 24 N.Y. St. Rep. 699

Majority

p. 699

John Oelerich, an Infant, etc., Resp’t, v. The New York Condensed Milk Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Negligence—Action for personal injuries—Liability of master.

Where, in an action to recover damages for personal injuries, the evidence tended to show that defendant’s driver drove on a quick trot in a thickly populated portion of Brooklyn, and ran over plaintiff, a child of six years of age; that the wagon was so constructed that the driver could only_ see an object some twenty feet in advance; that he had been drinking intoxicating liquors, Held, that the master is liable for the driver’s negligence.

2. Same—Contributory—Question for jury.

Held, that the question of the contributory negligence of the child was one for the jury.

Appeal from a judgment entered upon a verdict for plaintiff, in an action brought to recover damages for negligence of defendant’s servants.

The defendant owns, controls and uses wagons of different sizes in and about its business, of delivering milk to customers in Brooklyn.

On the 1st day of June, 1888, about half-past three p. M., a two horse wagon of the defendant, in charge of one of its employees, William Badger, who was at the time under the influence of liquor, was driven rapidly around the corner from Bushwick avenue into Boerum street, Brooklyn. The horses knocked the plaintiff, who was either on

p. 700

the cross-walk, or not more than three feet away, down, and one of the wheels passed over his head, to the extent of tearing the entire scalp, extending from his forehead to behind his ear, and from near the crown to the ear from the skull.

M. L. Towns, for resp’t; Wm. W. Niles, Jr. (Wm. W. Niles, of counsel), for app’lt.

The evidence fully sustains the verdict of the jury in this case. The defendant’s driver drove on a quick trot around a corner in a thickly populated portion of Brooklyn, and run over a boy under six years of age. The wagon was so constructed that the driver could only see an object some twenty 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 twenty 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 circumstance. Kunz v. The City of Troy, 104 N. Y., 344 ; 5 N. Y. State Rep., 642.

The judgment should, therefore, be affirmed, with costs.

All concur.