197 A.D. 821 | N.Y. App. Div. | 1921
The plaintiff, a boy about ten years of age, appearing by his guardian ad litem, was seriously injured on the 28th day of September, 1918, in the city of Troy, while alighting from an automobile truck. In company with a boy fifteen years of age, who had been sent by the plaintiff’s father to look after him, the plaintiff, in returning from a Liberty Loan parade, climbed upon an automobile truck owned and operated by the defendant, and in the immediate charge of one Harold Esmond, who was at the time about sixteen years of age. The plaintiff climbed upon the seat with the driver, rode there for some distance, when he changed positions with his companion, the latter getting upon the seat, while the plaintiff took his place upon the running board. This change of position appears to have taken place two or three times. At
It seems to us entirely clear that the plaintiff is not subject to the treatment of a mere trespasser; that the defendant owed him a higher duty than to merely refrain from doing him a wanton injury. The city was astir with the crowd which had assembled to witness a parade; the street cars and public busses were crowded to overflowing, and these boys, with others, were permitted,' if not invited, to ride upon the defendant’s truck. While it appears that they climbed upon the car from the rear there is no legitimate reason for assuming that this was done without the knowledge of the driver of the car, for both of these boys climbed upon the seat with him and rode for considerable distances, and the plaintiff’s companion appeared to know the driver. Knowing their presence upon the car, the driver slowed down, told them all to get off, and then, without giving them an opportunity to do so, he increased the speed and the result complained of followed. Can it be said that a driver of mature years would be discharging the obligations of the defendant under these circumstances? We think not.
Subdivision 2 of section 282 of the Highway Law (added by Laws of 1910, chap. 374, as amd. by Laws of 1917, chap. 769)
The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment reversed and new trial granted, with costs to the appellant to abide event.
Since amd. by Laws of 1919, chap. 472.— [Rep.