49 Barb. 529 | N.Y. Sup. Ct. | 1867
Lead Opinion
An infant, when suing in his own behalf for injuries to his person arising from the negligence of others, must be free from the imputation of negligence on his part tending to produce the damages sought to be recovered. The rule is the same, whether the action be by an infant or an adult. We would not hesitate to hold an adult person,, who should rush from the sidewalk, when a street fail car was passing near, (within four feet of the curb stone, where the proper allowance is made for the projection of the car body beyond the railroad track,) and lying down upon a heap of sand, placed in the narrow space between the track and the curb stone, seeking to recover an article which had fallen from his hand upon such narrow space, to be guilty of inexcusable negligence.
In reckless and childish haste the infant approached so near the car as to bump his head against it. It is no excuse that he did not see the car. It appears to be negligence not to have done so. Ordinary prudence would have prevented. Nor is it any excuse that the lad had less discretion than a man. He is required to exercise the prudence of a person of ordinary intelligence, before an action for damages arises for an injury to his person resulting partly from the carelessness of others. The lad was required to take the same care of himself as any other person. All are held accountable for a reasonable degree of prudence as to their
The negligence of the driver was, it is clear, a question for the jury, and it was properly submitted.
The motion to dismiss the complaint should have been sustained upon the other ground. The call of Mrs. Webber was a warning to the child as well as to the driver of the car. It is difficult to understand from the evidence that the driver could have managed the car so as to have prevented the accident ; but I lay no weight upon this question, and am of opinion, under the decision in the case of Ernst v. The Hudson River Railroad Company, (32 How. Pr. 61, 88,) that the case on this point should have been left to the jury, had it not been beyond doubt that the negligence of the- boy contributed to produce the injury.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Clerks, J. concurred.
Dissenting Opinion
The principle of law is well settled that to recover damages in an action for injuries occasioned by the negligence of a party, it must be made to appear that the defendant was guilty of negligence, and that there was no negligence on the part of the plaintiff which co-operated with the misconduct of the defendant to produce the injury complained of. (Button v. Hudson River R. R. Co., 18 N. Y. Rep. 248. Deyo v. N. Y. Central R. R. Co., 34 id. 9. Tonawanda R. R. Co. v. Munger, 5 Denio, 255; 4 Comst. 349, Wilds v. Hudson River R. R. Co., 24 N. Y. Rep. 430.)
As to the negligence of the defendants in this case, which is the first question to be examined, I think "the testimony was contradictory, and not sufficiently preponderating in favor of the defendants to take the case from the jury. Three of the plaintiff’s witnesses testified that the car came along very fast. Two of them agree that one of these witnesses halloed to the driver to stop, and that he proceeded without heeding the warning. The conductor and driver both contradict the principal facts sworn to by the plaintiff’s witnesses, and there is considerable contrariety in the whole evidence, as to some other important facts in controversy, in reference to this branch of the case. There is not, however, such a strong preponderance in favor of the defendant as to authorize the court to say that the weight of the evidence was entirely against the plaintiff; and I think it was a fair case to submit to the consideration of the jury ,upon the question of the defendants’ negligence.
The question arising as to the negligence of the boy is more troublesome and difficult, but I am inclined to think was properly submitted to the jury. If we assume as the plaintiff, in this cause, stands in the same position that the infant would, were he a party to this action, which, perhaps, is the correct rule, then he must be held to that degree of care which a person of ordinary prudence would exercisé, without regard to his tender years. (Honigsberger v. The 2d Av. R. R. Go., Manuscript Opinion of Gourt of Appeals.) The fact that he is an infant, would not help him, of itself, and does not confer any right to occupy the highway differently, or in any other manner, than a person of full age and mature understanding. Nor do I understand that the mere fact that his parents suffered him to go at large, alone and of itself, establishes negligence. Hartfield v. Roper, (21 Wend.
Ella Clayton testified, substantially, to the same facts. The boy, who was allowed to make a statement, not under oath, states that he was on the sidewalk when he dropped the wheel. It rolled to the heap of dirt, and he ran after it quick. He did not see nor hear the car. He was lying on
The evidence of the plaintiff is contradicted in its material particulars by the defendants' testimony. The car driver testifies, that the boy ran out to catch hold of the car, and the driver warned him off. The boy Grillhooley, who was also allowed to make a, statement, not under oath, says that the boy Burke was running along, and had hold of the side of the car about in the middle. There is also testimony of the conductor and the driver, that the car was running at a moderate rate of speed, and contradictions on the most important points of the plaintiff’s evidence. It is difficult to determine where the preponderance was, and the jury, who heard the witnesses, were better qualified to decide that matter than this court.
The real point after all is, that taking into consideration the situation .of the boy as described by the witnesses, does it show negligence on his part ?
In Bernhardt v. The Rensselaer and Saratoga R. R. Co., (23 How. Pr. 168,) Selden, J. in discussing the question as to the submission of a question of negligence to a jury, says : “ If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary care and prudence would be likely to do under the circumstances proved, this involving, as it generally 'must, more or less conjecture, can only be settled by a jury.” (See also Ireland v. The Oswego Railroad Compan, 13 N. Y. Rep. 536 ; Keller v. The New York Central Railroad Company, 24 id. 177.) I think it may be said, that inferences to be drawn from the facts to be presented, are by no means so sure as to leave no question in regard to them. Hor can it be doubted that it was necessary to determine, in this case, what ordinary care and prudence required, within the principle laid down by Judge Selden.
If,- as hag been supposed, the Court of Appeals has varied
These views are founded in practical wisdom and experience, and the history of the law and trials of this character evince that, in most cases, juries are apt to be right, even although they sometimes differ from the courts as to the conclusions to be drajvn from the evidence presented. When they clearly err, the court should not -hestitate to interfere and rectify the mistake. . Butj as a general rule, the judgment of an intelligent and unbiased jury, acting under the solemn sanction of ^ an oath and the instructions of an enlightened judge, is the safest depository of the rights of parties in all questions of fact which may arise.
It follows, from the remarks made, that no error was committed by the judge on the trial, by refusing to dismiss the complaint, and in submitting the question arising as to the negligence of the defendant and the plaintiff to the jury.
I have examined the other questions raised, and think there was no error in the ruling of the judge in regard to them. The judgment should be affirmed, with costs of. appeal.
Hew trial granted.
Leonard, Clerke and Miller, Justices.]