70 N.Y.S. 29 | N.Y. App. Div. | 1901
The plaintiff entered a judgment for $2,125 damages for the death of his child upon a verdict at Trial Term in his action against the defendant based upon negligence. The defendant appeals.
I think that the question of. negligence of the defendant was for the jury. (Birkett v. Knickerbocker Ice Co., 110 N. Y. 504 ; Moebus v. Herrmann, 108 id. 349.) The question of contributory negligence was also for the jury. The presence of the lad on the sidewalk was not the negligence per se of his. parents, or of his immediate custodian (Kunz v. City of Troy, 104 N. Y. 344; Birkett v. Knickerbocker Ice Co., supra; Huerzeler v. C. C. T.
The learned counsel for the appellant contends that there is no evidence that the accident was caused by the truck of the defendant. The accident happened about half-past five o’clock p. m. on July 25, 1900, very nearly in front of 35 Montrose avenue, between Lorimer street and Union avenue. Louisa Beleski, who took the lad up after the accident, testifies that the words “ Honest Long Cut” were on the truck, that she saw the truck continue on its way to the corner of Union avenue, and that Mr. Kirsch and a lad ran after it. Mr. Kirsch testifies that after the child was taken up he followed the truck until he met Freedman, who said: “ f It is one of the Honest Long Cut.’ ” Mr. Wien testifies that after hearing the outcry, he looked out of his window and saw a wagon with “ Honest Long Cut Tobacco ” on it, and that he saw Kirsch run after it and turn into Union avenue. Mr. Freedman corroborates Mr. Kirsch. Mr. Weil testifies'that on the day of the accident he had seen one Cassidy on Scholes street delivering goods, and that “ Honest Long Cut ” was upon the truck. The defendant admitted by his answer that he trucked for the American Tobacco Company, the name which was on his trucks; that on the day of the accident one Cassidy, then in his employ, on the afternoon of July 25, 1900, was in charge of one of his trucks engaged in defendant’s business, and in course thereof drove through Montrose avenue, Brooklyn, between Lorimer street and Union avenue. Cassidy, the driver called by the plaintiff, by his testimony reiterated the admission and testified that he was in Montrose avenue between five and six o’clock, and on the last occasion he drove towards Union avenue. He testified that he drove a two-horse truck, the body of which was painted black, with yellow letters which read “ Honest Long Cut,” and that it also bore the inscription “ American Tobacco Company.” McCrystal testified that he was on the truck with Cassidy and that they drove in Montrose avenue, between five and six o’clock on that day,
The judgment must be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.