301 N.Y. 176 | NY | 1950
Robert Chadwick, then ten years of age, met his death under the wheels of a truck belonging to the defendant city under circumstances which, it is claimed, amounted to actionable negligence on the part of the driver under the.doctrine of the last clear chance who failed to bring his truck under such control as to avoid injuring Robert after he knew that the boy was in peril. The dismissal of the complaint at the close of all the proof has been affirmed in the Appellate Division by a divided court. Under such circumstances the plaintiff-appellant here is entitled to the most favorable inferences reasonably to be drawn from his proof.
On March 21, 1945, a rainy day, the infant decedent Robert and his brother John, aged twelve, while returning home from school, hitched a ride on a sanitation department truck which had stopped at the red light at the corner of Sunrise Highway and South Conduit Street, Queens. According to John’s testimony, the boys climbed on the right front fender and sat on a corrugated metal step fastened to the top of the fender and designed for use by persons mounting into the cab. John
The underlying question on this appeal is whether by any reasonable inference a jury could find that the driver was apprised of the peril to Robert in time to avoid running over
The defendant makes a strong argument for distinguishing the Elliott and other cases (supra), on the theory that even though John’s rapping might well give rise to an inference that he was in peril there was nothing to warrant an inference that Robert,
Where a plaintiff has become, through his own prior negligence, so hopelessly implicated in a dangerous situation that he has lost all ability to extricate himself, responsibility for the ensuing accident may be shifted to the one who has a recognizable opportunity to save him. This is clearly the import of our later decisions — note the Elliott and Crane cases (supra) — where we, in effect and in fact, have ruled that when the defendant first became conscious of the impending danger and whether he then did all a reasonable man would under the circumstances to prevent disaster were questions of fact for the jury.
Professed ignorance of the danger is not alone as a matter of law, a defense if the circumstantial evidence might show that the defendant in fact had the requisite knowledge upon which a a reasonably prudent man would act (Woloszynowski v. New York Central R. R. Co., 254 N. Y. 206, 209, supra; Crane v. Long Island R. R. Co., supra). The driver’s testimony is not, therefore, conclusive but is to be subjected to the test of credibility which is for the jury. We are satisfied that this record presents questions of fact which, upon a proper charge, should have been left to the jury.
The judgments should be reversed and a new trial granted, with costs to abide the event.
Lewis, Conway, Desmond and Froessel, JJ., concur with Dye, J.; Loughran, Ch. J., and Fuld, J., dissent.
Judgments reversed, etc.