Hand v. Klinker — 7 N.Y. St. Rep. 21

Majority

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Thomas Hand, an infant, by James Hand, his guardian, ad litem, App’lt, v. John Klinker, Resp’t.

(New York Superior Court, General Term,

Filed May 2, 1887.)

Headnote

Negligence—Streets—Sidewalk—Right to back wagon across.

The plaintiff was injured by being struck by a wagon belonging to defendant winch was backed across the sidewalk in 49th street, in New York city, in order that some sacks of salt on the wagon could be delivered into the window of a factory on that street. The trial judge charged that the act of defendant’s driver in placing his wagon on the sidewalk, was not, per se„ unlawful. Held, not error. Following Welsh v. Wilson, 101 N. Y., 254 ; 1 N. Y. State Reporter, 19.

Appeal from judgment for costs entered on verdict in favor of the defendant, and from an order denying plaintiff’s motion for a new trial.

Hart & Price, for app’lt; John C. Shaw, for resp’t.

plaintiff was injured in September, 1881, by being struck by a wagon belonging to defendant, which was backed across the sidewalk in Forty-ninth street, between Eleventh and Twelfth avenues, in order that some sacks of salt on the wagon could be delivered into the window of a factory on that street.

The plaintiff was then about eight years old.

The learned trial judge, in his charge to the jury, said, “that the defendant’s wagon was lawfully on the sidewalk. The driver had a load to unload. But the boy was, also, lawfully there, and each had to respect the presence of the other—each was bound to take care.”

To this part of the charge, “that the defendant’s wagon was lawfully on the sidewalk,” the defendant’s counsel excepted, and the only material question to be considered now is, whether that exception was well taken.

The court of appeals, in the case of Welsh v. Wilson ( 101 N. Y., 254 ; 1 N. Y. State Rep., 19), say: “The defendant, desiring to remove two large cases of merchandise from his store in the city of New York, placed a pair of skids from a truck across the sidewalk to the steps of the store. * * * The defendant had the right to place the skids across the sidewalk temporarily for the purpose of removing the cases of merchandise. Every one doing business along a street in a populous city must have such a right, to be exercised in a reasonable manner, so as not to unnecessarily incumber and obstruct the sidewalk.”

In this and the case at bar, although the facts are not. precisely the same, they are yet, in their main feature and in principle, analogous.

The trial judge, in the case at bar, was justified in charging, as he did, that the act of the defendant’s driver, in

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placing his wagon on the sidewalk, was not, per se, unlawful under all the circumstances of the case. He clearly and carefully instructed them that the defendant was liable for any negligence of his driver in the management of his horse while the wagon was on the sidewalk.

This was all that the plaintiff was entitled to; and this and the other exceptions to the judge’s charge are not well taken.

The judgment should be affirmed, with costs; and the order denying the motion for a new trial should be affirmed.

Sedgwick, Ch. J., concurs.