27 N.Y.S. 941 | City of New York Municipal Court | 1894
The plaintiff, a little boy, six years old, sued to recover damages for serious and permanent injuries sustained by him from being negligently run over by a horse and wagon owned and controlled by defendant and driven by his servant. The appellant’s contention is that the proof shows that the boy’s injury Avas the result of a mere accident, not occasioned by any negligence of his driver, and that his motion for a nonsuit at the close of plaintiff’s case should have been granted. He did not move for a dismissal or for the direction of a verdict in his favor after he had closed his evidence and rested, and if the proof Avas sufficient to carry the case to the jury, their verdict should not be disturbed. The plaintiff’s proof shows that the accident occurred on the south side of Eleventh street, about fifty to sixty feet east of the corner of First avenue ; that this is a tenement-house neighborhood, with tenement houses on one side of the street, and a cemetery on the other, and that there are not many wagons going through the street; that plaintiff resided with his parents, who had eight children, in one of these tenement houses of the neighborhood; that this boy, when he attempted to cross the street, slipped and fell from the sidewalk into the gutter of the street and was unable to get up, and then the wagon of the defendant turned around the corner, about fifty to sixty feet from where the boy was lying unable to get up, and kept on going after it turned, and ran over his head and shoulders; that when the wagon so turned, the driver Avas sitting upon his seat in front of the wagon, "with his face towards the horse, looking ahead of him, and he tried to stop the horse, but he went too fast for him, and the horse jumped to one side, but the witness did not know whether the driver made
Hewbübgbb and McCabthy, JJ., concur.
Judgment and order affirmed, with costs.