188 N.E. 278 | NY | 1933
Plaintiff's intestate, a child nearly three years of age, was killed in a collision between motor vehicles driven by defendant Lesser and an employee of defendant Vacuum Oil Company. With her mother's consent the child was riding on the seat of a truck beside her brother, eleven years of age, and their uncle, Lesser, twenty-one years old, one of the drivers who was held to be negligent. Recovery was had against both defendants. No appeal is taken from the judgment in favor of the boy, who also was injured, but defendant Vacuum Oil Company appeals from the judgment for the death of the girl and raises the point that the negligence of Lesser, her custodian, must be imputed to this infant, who was non sui juris.
Strong support for appellant's argument is to be found in other jurisdictions (Delaware, L. W.R.R. Co. v. *130 Devore, 114 Fed. Rep. 155; Holly v. Boston Gas Light Co.,
Applying the rule as stated in the Ihl, McGarry, Cumming andHennessey cases, the burden rested upon defendants in this death case to produce evidence tending to show acts or omissions by the infant which if attributed to an adult would constitute contributory negligence. No effort is made to prove that this infant, in any way different from her brother who sat beside her, or any other mature passenger who might have been in the truck, could have done anything to avert the injury to herself or that in any way she brought it to pass. This infant's legal status is the same as would be that of any other passenger who was rightfully on the truck. (McGarry v. Loomis, supra.)
The judgment should be affirmed with costs.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, HUBBS and CROUCH, JJ., concur.
Judgment affirmed.