186 A.D. 594 | N.Y. App. Div. | 1919
The plaintiff’s intestate was killed by the defendant’s automobile truck upon November 19, 1917, upon the Fordham road at a point east of the Landing road, in the borough of The Bronx, New York city. The plaintiff’s intestate, eleven years and some months old, was assisting a young friend, Riecinetti, of the same age, in drawing some cinders, which had been picked up near the railroad property, to his fr/iend's home. They proceeded in a northeasterly direction along the right side of Fordham road, until they came to a spot about opposite where the accident occurred. One of the boys apparently was drawing the little cart upon which the cinders were stored, while the other was pushing. When they got opposite the point in question they started to go across the road. The evidence of the boy’s companion is that they, both of them, looked up and down the road. The time was about ten minutes' before six and the day November nineteenth, so that it was dark and all the street lamps were lighted. Seeing nothing coming from the southwesterly
The question of the defendant’s negligence presents some difficulty. The trial judge in his charge presented to the jury especially the fact that the chauffeur was coasting down this hill as an element from which they were authorized to find that the chauffeur was negligent. I can see nothing negligent in coasting down this hill. The descent was a gradual one. There is no evidence that in the coasting the car got to any extent beyond the control of the chauffeur. It was more easily stopped when coasting than if the power
In reaching this conclusion I am not unmindful of the testimony of the policeman to the effect that the car skidded thirty feet after striking the boy. The evidence, however, is to the effect that when found, the boy was only five feet from the rear wheel of the truck. All the other evidence is to the effect that the car stopped within a very short distance after the boy was struck. It does not seem possible that this wheel could have dragged that boy twenty-five feet over the pavement before passing over bis body, nor is the skidding alone sufficient to prove a reckless speed. Evidence as to the distance in which an automobile or a street car can be stopped is often very misleading; that presupposes that the party knows that he has to stop the car and is prepared with his hands upon the brakes for that purpose. In driving along when an emergency is created, it takes a moment for the human mind
. The judgment and order, I think, should be reversed and a new trial granted, with costs to appellant to abide the event.
The findings that the defendant was guilty of negligence and plaintiff’s intestate was free from negligence should be reversed.
Clarke, P. J., and Laughlin, J., concurred; Dowling and Merrell, JJ., dissented.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.