158 N.Y.S. 335 | N.Y. App. Div. | 1916
The complaint was dismissed. Defendant’s four horses before a long truck drew up on the side of Eighth street, in Long Island City. The horses’ heads were at the crosswalk at the corner of that street and Vernon avenue. The driver, leaving his truck, went over the way, and after some fifteen minutes returned to his truck and drove away. As the truck was started up the rear right wheel next to the curb came in contact with plaintiff, then about three and one-half years old, and he was thrown in front of the wheel and severely injured. The hub of the wheel extended about two inches onto the curb and collided with the child, who, playing tag, was running towards the wagon and looking back at the boy who was chasing him. The only person who testified to the approach of the boy to the hub, as just stated, was the witness Cassidy, although her sister, McVey, and the child’s mother, happening to look from the window of her house, saw the wheel in contact with the boy. Is there evidence of defendant’s negligence ? It will be noticed that the driver probably left and returned to the truck on its near side and before starting did not look along the sidewalk. Moreover, as he started up he was talking with some one ahead of him and across the way. Was he negligent in not looking back along the right side of his wagon ? Had he done so he would have seen children playing on the sidewalk and other persons there. He would not have seen the plaintiff stationary at the curb and in front of his wheel, but playing on the sidewalk, and had he continued looking until he started he probably would have seen him running toward the wheel and looking back • and away from the wagon towards another child pursuing him. Seeing the child so situated, would he, in the exercise of ordinary care, have reflected that there was a reasonable probability that the
The judgment should be affirmed, with costs.
Present—Jenns, P. J., Thomas, Oaee, Stapleton and Mills, JJ.
Judgment unanimously affirmed, with costs.