Eckensberger v. Amend — 57 N.Y. St. Rep. 569

Majority

p. 569

Heinrich Eckensberger, Resp’t, v. Bernard G. Amend, App’lt.

(New York City Court, General Term,

Filed March 9, 1894.)

Headnote

Appeal—Failure to move to dismiss.

Where the defendant does not move for a dismissal, or for a direction of

p. 570

a verdict in his favor, after he has closed his evidence and rested, a verdict in favor of plaintifE will not be disturbed if the proof is sufficient to carry the case to the jury.

Appeal by defendant from judgment on a verdict returned by the jury against him for damages sustained by plaintiff from personal injuries.

Chas. G. Nadal, for app’lt; A. & C. Sleekier, for resp’t.

The plaintiff, a little boy six years old, sued to recover damages for serious and permanent injuries sustained by him from being negligently run over by a horse and wagon owned and controlled by defendant and driven by his servant. The appellant’s contention is that the proof shows that the boy’s injury was the result of a mere accident, not occasioned by any negligence of his driver, and that his motion for a non-suit at the close of plaintiff’s case should have been granted. He did not move for a dismissal or for the direction of a verdict in his favor after he had closed his evidence and rested, and if the proof was sufficient to carry the case to the jury, their verdict should not be disturbed. The plaintiff’s proof shows that the accident occurred on the south side of Eleventh Street about fifty to sixty feet east of the corner of First Avenue; , that this is a tenement house neighborhood, with tenement houses on one side of the street, and a cemetery on the other, and that there are not many wagons going through the street; that plaintiff resided with his parents,'who had éight children, in one of these tenement houses of the neighborhood; that this boy, when he attempted to cross the street, slipped ánd fell from the sidewalk into the gutter of the street and was unable to get up, and then the wagon of the defendant turned around the corner about fifty to sixty feet from where the boy was lying unable to get up, and kept on going after it turned, and ran over his head and ■ shoulders; that when the wagon so turned, the driver was sitting upon his seat in front of the wagon, with his face towards the horse, looking ahead of him, and he tried to stop the horse, but he went too fast for him, and the horse jumped to one side, but the witness did not know whether the driver made him go to one side, or whether the horse went there himself, but he went to one side until he went over the boy; that the driver drove fast; he did not go slow; he went fast; he was going in a fast way ; the horse was running a little too quick; the wagon came around the corner pretty quick, but the boy was down a long time before it came up to him, and if the driver had looked out he would not have run over him. The defendant’s witness, Hendricks, whose business is trucking for himself for six years, says that this was a little delivery wagon, that a single horse and wagon can be stopped when it is upon a fast trot, within fifteen or twenty feet, but if the horse has a heavy load, you can stop him in a shorter space. This proof certainly justified the submission to the jury of the question as to absence of contributory negligence on the part of the plaintiff, and the presence of negligence on the part of the defendant’s driver in not arresting the progress of his horse or turning him aside so

p. 571

as to avoid running over the prostrate boy, who “ was unable to get up,” for if he saw him lying there when he was fifty to sixty feet away from him, it was negligent not to bring the horse to a stand-still before he reached him, for it is in evidence by defendant’s own wdtness, that this little delivery wagon drawn by one horse could be stopped, when upon a fast trot, within fifteen or twenty feet. It is true that the driver gives an entirely different version of the accident, and says that he was not any distance at all from the boy when he fell, but that he fell just behind the horse, and directly in front of the wheel of the wagon, and of course if this was so, the defendant would not be liable, but the jury repudiated this contention, and found for the plaintiff, and their verdict is not against the weight of evidence. There is no merit in defendant’s exceptions, and the judgment and order are affirmed, with costs.

Kewburger and McCarthy, J.J., concur.