58 N.Y.S. 543 | N.Y. App. Div. | 1899
The question presented in this case is somewhat close, and yet we are clearly of the opinion that, upon the facts appearing in the present record, the recovery may not be upheld. There is very little conflict in the testimony, and the case may be disposed of upon substantially undisputed facts.
It is quite evident from all the testimony that the motorman was ■prudently operating the car. The car was not near a street crossing, and nothing intervened in front of it which required the ringing of the bell or the application of the brake. The obligation
So in the present case, we think the motorman had the right to assume that this infant would not voluntarily leave the walk at the side of the street and deliberately run into the car; consequently he was not, in the exercise of reasonable and ordinary care, required to operate his car in contemplation of such a contingency, tie was undoubtedly required to be upon his guard against the heedless action of immature children, but such reasonable care did not require the assumption that this infant would run into his car. At the time the child was upon the curb the motorman was about 125 feet from the intersection of Halsey street, at which point the car was required to stop'. As the car approached the point of contact with the child, it was evidently under reasonable control, for the overwhelming testimony is that it was stopped after such contact within a distance of 20 feet, and this could not have been accomplished had not the car been fairly and reasonably under control, having regard to circumstances reasonably likely to happen in that locality. If the motorman had seen the child when he left the curb, that fact would have occasioned no immediate apprehension that he would attempt to cross in front of the car; and as the fact was that he did not reach the track until some part of the car had passed the child, we are unable to see that any act was required of the motorman to check his speed, as at no time was the child on the track in front of the car. When the child did come in contact
None of the other cases cited by the plaintiff add to the strength of the Muller case in support of plaintiff’s contention ; it is not, therefore, necessary that any reference be made to them.
It follows that the judgment should be reversed and a new trial granted • .
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.