104 N.Y.S. 357 | N.Y. App. Term. | 1907
This is an action to recover damages for personal injuries sustained by an infant, who at the time of the accident was five years of age. The infant was knocked down by an automobile of the defendant while he was.crossing from the south to the north side of West Thirty-Fifth street, on the west side of Seventh avenue. The child left his father’s place of business on Seventh avenue, between Thirty-Third and Thirty-Fourth streets, to go to a bakery on the same avenue, between Thirty-Fifth and Thirty-Sixth streets, to purchase some cake. The testimony of the father of the child was that before the child left his store he cautioned him to look out for cars, automobiles, and wagons. The testimony showed that the automobile was going rapidly, and that no signal of its approach was given. At the close of the plaintiff’s case the defendant was called to the stand, but was asked no questions and gave no testimony. The justice who tried the case without a jury then granted the defendant’s motion to dismiss the complaint. The facts testified to by the witnesses for the plaintiff were uncontradicted and established a prima facie case. The judgment dismissing the complaint was contrary to the weight of the evidence,- and should be reversed.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.
