12 N.Y.S. 485 | N.Y. Sup. Ct. | 1890
This action wás commenced by Lewis Levy, as administrator of the estate of his daughter, Sarah Levy, who was run over by a car of the-defendant on East Broadway, on the 30th of August, 1885, and from the injuries then received she soon afterwards died. The administrator died after the commencement of the action, and it was then revived in favor of -the plaintiff as administratrix, who is the mother of the intestate. The injury was received by the child near 6 o’clock on a Sunday afternoon, while the car was moving in an easterly direction, at an ordinary rate of speed. The child who was killed resided with her parents on the northerly side of the street, between Pike and Butgers streets. She was then 3 years and 10 months old, and from the evidence appears to have been as intelligent and observing as healthy children usually are at that age. She had passed over to the southerly side of the street, and was in the act of returning, and near the northerly rail of the defendant’s railway, when she was knocked down by the horse andi run over by the forward wheel of the car, and was under the hind wheel when, she was removed by her father, who was near his residence, and in the street, at the time, facing southwardly. The witnesses agreed in their evidence that the driver of the car, which was a one-horse car, had his face turned towards the inside of the car as the horse approached the line on which the child undertook to cross the track, and that she was then from 20 to 30 feet from the horse. At least the jury could very consistently, from the evidence which, was given, find these to be the facts; and that he did not turn his head, to be able to look forward, until he was admonished by the hallooing of persons on the sidewalk, who had observed the child, and that she was in immediate danger from the proximity to her of the horse that was drawing the car. From, these facts the jury would also be warranted in finding that there was a want, of proper care on the part of the driver in the management and progress of the car, which was then moving on a down grade towards Butger street. And in the disposition of this appeal the court is at liberty to believe that they would have found that fact in the plaintiff’s favor, as she is entitled to every favorable inference supported by the proof on account of her complaint being-dismissed, and the case withheld from the jury.
The still more critical inquiry remains, whether the evidence was such as-to enable the child, or more properly her parents, to escape the imputation of negligence or want of care on their part. The child was stated by her mother to have possessed uncommon intelligence for her age, and to have been smart, like a girl of 10 years of age. And if that was a correct description of her,, the jury might or might not have considered her careless in trying to cross-the track when the horse was so near to her. It would not necessarily be negligent, for a girl of 10 years could very well cross the track safely when she was 20 feet away from the horse as she reached the first rail. But they would not be obliged to accept that evidence as strictly correct; for the age of the child, on the evidence given by other witnesses who knew her, indicated