Mason v. Atlantic Avenue Railroad — 53 N.Y. St. Rep. 454

Majority

p. 454

Edward H. W. Mason, Adm’r, Resp’t, v. The Atlantic Avenue Railroad Co., App’lt.

(City Court of Brooklyn, General Term.

Filed June 27, 1893.)

Headnote

'¡Negligence—Steeet bailboads.

Plaintiffs intestate, a child of six years and of ordinary intelligence, while going upon an errand, as it was accustomed to do, attempted to cross the avenue on which defendant’s cars run. When part way across he stooped to pick up something and then proceeded, when he was si ruck by an open car going at a rapid rate. There was evidence that the driver was not looking, but talking to some one on the platform; that the view was unobstructed, but the driver did not see deceased until his attention was called to it after the car had gone seventy-five feet. Held, that the evidence was sufficient to make it proper to submit the question of the driver’s negligence to the jury.

Appeal from judgment in favor of plaintiff, entered upon verdict and from order denying motion for a new trial.

Dailey, Bell & Crane, for resp’t; Wm. S. Cogswell, for app’lt.

Plaintiff brought this action as administrator, etc., to recover damages against the defendant for negligently causing the death of his son. Plaintiff obtained a verdict in his favor, and from the judgment entered thereon, and an order denying a motion for a new trial, defendant appeals.

The learned counsel for the appellant bases his appeal on two grounds, firstly, that his motion to dismiss the complaint at the close of respondent’s case should have been granted, for the reason that no negligence was shown on the part of the defendant, and that contributory negligence was shown on the part of decedent, and, secondly, that, the verdict was against the weight of evidence.

The evidence adduced on behalf of the plaintiff showed that decedent was a child six years of age, about four feet in height, and possessed of the ordinary intelligence of his years; he had been in the habit of going on errands for his mother to the grocery store, almost daily, for a period of six months prior to the date of the accident; he resided on Pacific street, near Flatbush avenue. On the afternoon of September 3, 1892, deceased was sent by his mother on an errand to the grocery store on the further side of Flatbush avenue from his residence; he started to

p. 455

■cross Flatbush avenue from the west curb, and when about twelve or fifteen feet from the curb, and at the first, or westerly-track, he stopped to pick up something, then proceeded across the avenue and was struck by the horses of one of defendant’s open ■cars, proceeding northwardly, on the easterly, or down track. It further appeared that at, and just before the accident the car was .going at a very fast rate, the driver was not looking ahead of him but was engaged in conversation with a passenger on the front seat and had his head turned to one side; that he did not see the boy, or even know that he had run over him till the conductor whistled for the driver to stop, and when the latter looked around to ■the conductor, the conductor pointed back to the body of the boy, then lying on the track to the rear of the car; the car went about seventy-five feet from where the boy was lying before it ■stopped; it was also testified that there was no obstruction to prevent the driver from seeing the boy, if the driver had been looking ahead and attending to his duties.

We think that this evidence clearly made out a case of negligence on the part of the driver; .it certainly established a state of facts which made it proper to submit to a jury the question of the driver’s negligence.

Whether the decedent was or was not sui juris, and whether he ■exercised that degree of care which might reasonably have been 'expected of him, were questions for the jury to determine. Stone v. Dry Dock, etc., R. R. Co., 115 N. Y., 104 ; 23 St. Rep., 551 . "The law on this subject was carefully laid down by the learned trial judge to the jury, in a charge to which no exception was taken, and the rights of the defendant in this respect were thereby ■secured to it

We have carefully gone over all the evidence in this case, and we cannot say that the verdict was against the weight of" evidence, or that it was the result of passion, bias or prejudice. There undoubtedly was a sharp conflict between the witnesses on both sides as to some material points in the case, but there was no such preponderance in favor of the defendant as would justify us in setting aside the verdict.

The judgment and order appealed from should be affirmed, with costs.

Clement, Oh. J., concurs.