90 N.Y.S. 527 | N.Y. App. Div. | 1904
The plaintiff, a boy two years and nine months old, was injured on the 4th day of August, 1899, by being run over by one of the
It is urged on this appeal that the mother of the child was guilty of contributory negligence in permitting the child, which was only two years and nine months of age, to play in the streets unattended, but the question of the mother’s contributory negligence was submitted to the jury upon a charge to which there are no exceptions, and we are persuaded that under the evidence this was a proper disposition of this branch of the case.
We are likewise of the opinion that the evidence warranted the submission of the question of the negligence of the defendant to the jury, and that the evidence sustains the verdict.
A more complex question is presented by the objections and exceptions to the admission of evidence in respect to admissions made by the defendant’s driver after the happening of the accident. The plaintiff’s theory of the case, supported by the evidence, was that the defendant’s wagon was passing along Clinton street, with the lines hung over a hook, one of them drawn tighter than the other, and that the driver was engaged in looking over a book in which he recorded his deliveries of milk; that the plaintiff, who was playing in the dirt, between the Sag walk and the pavement, with his back to the approaching horse, sat with his feet hanging over the curb, and that the horse, directed by the tightly drawn rein, approached the curb so closely that the wheels of the wagon passed over the plaintiff’s feet, throwing him against the wagon in such a position that he sustained severe bruises about the head, finally resulting in epileptic fits. With the evidence warranting the above view of the case, defendant called the driver of the wagon which produced the injury, and he testified that the lines were not hanging on the hook, which was admitted to be in the wagon, but' that he was holding them; that he was not engaged in looking over his book, but was watching the direction of his horse; that he did not see the child, except that he did see a box around a tree near where the accident occurred, and he thought, as he approached it, that he discovered something behind the tree box; that just as his
It is now urged that under the objection that this testimony was incompetent and immaterial the court erred in permitting the witness to answer. There can be no doubt that the plaintiff could not have proved these declarations of the driver as part of his case, for the rule is well established that statements made in the absence of a party by one who did not speak by his authority are incompetent (Austin v. Bartlett, 178 N. Y. 310, 313; Burns v. Bordens Condensed Milk Co., 93 App. Div. 566, 567, and authorities there cited), but in the case now before us the defendant had called this driver,
While the evidence connecting the present epilepsy with the accident is not as conclusive as might be desired, an examination of the evidence fails to convince ns that there was not a question for the jury. If the epilepsy did, in fact, result from the accident, the damages are not excessive, and we find no good reason for reversing the judgment.
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.