215 A.D. 549 | N.Y. App. Div. | 1926
There are two causes litigated here, the principal one of which is an action by an infant for damages incurred through the negligence of the defendant, the receiver of the Second Avenue Railroad Company, and the other a suit by the infant’s father for loss of his services. The infant recovered $15,000 and the father $5,000.
The defendant receiver contends that the proof shows that there was no negligence shown on the part of the motorman of the car which caused the damage, and that there was contributory negligence upon the part of the boy who was injured, if he was sui juris; and if non sui juris, that there was negligence upon the part of his mother imputable to him.
The accident occurred on Second avenue between Eighty-third and Eighty-fourth streets. It is described by four eye witnesses: one a police officer who rode on the front platform of the car which struck the boy,' one a young girl who was on the sidewalk near the scene of the accident wheeling a perambulator, another a young girl who sat in a window overlooking the scene, and the fourth the mother of this girl, who occupied another window in the same apartment. The witnesses differed as to the manner of the happening of the accident. The two girls, Miss Betancourt and Miss Kelly, said that the boy caught his foot in one of the rails of the west track and was unable to release it when the car was about fifteen feet away from him; and Mrs. Kelly, the mother of the other witness of the same name, and the police officer on the forward platform of the car, did not notice that the boy’s foot was caught in the rail at all. The boy was over five years of age when he was injured. He had been sent down stairs from the apartment in which he lived with his mother and six other children, when they were on their way back to school after lunch on the afternoon of March 11, 1921. He was told to wait at the doorway for the return of his eldest sister, who was expected home in a few minutes. Instead of remaining at the doorway, he crossed Second avenue from the west to the east where there was a sand pile in the roadway at which some other children were playing. He spent a few minutes there and then started to return
The case was submitted to the jury on the plaintiff’s proof, which contains both these versions of the happening of the accident to the child. If the jury found that the motorman was negligent in not observing the boy when he left the sand pile because of his looking at the coin box, and in thus failing to take such reasonable care as the possibility of his moving into the area of the moving car required, then there would be warrant for upholding the verdict upon that theory. On the other hand, if the jury concluded that the motorman was negligent in not anticipating the possibility of the child being caught in the track and thus being unable to move in front of the car and escape being struck, there can be no justification for the finding of negligence on that theory, since in the natural order of events the boy would very likely have gotten across the track without being struck, and except for his foot having been caught in the rail would not have been endangered.
It is not possible to determine upon which theory of alleged negligence the jurors found the motorman guilty, and, therefore, the judgment must be reversed because the finding upon one ■theory that the motorman was negligent would have been error.
There is no doubt that a motorman cannot be considered careless, although he fails to see a child or pedestrian of any age between crossings, if he would not have struck him in the exercise of reasonable care if some unusual event had not intervened between his beginning to cross the tracks and his being struck, such as tripping and falling or being caught in the rails or the pavement, or in some other manner having his progress impeded. This is so because the proximate cause of his being struck was not that the motorman failed to observe him, but that he was arrested in his progress by some intervening cause over which the motorman had no control, which he could not anticipate, and for which he was not responsible. The rule would vary at a regular street crossing where the motorman is obliged to be vigilant for the travel of pedestrians who are expected to be in that part of the highway.
The judgments should, therefore, be reversed and a new trial
The question of an excessive verdict is not raised in respect of the infant’s award at $15,000, but it is asserted urgently that $5,000 was entirely too great a sum to award the father for the loss of the infant’s services. We think this is a correct charge of error, and that $1,500 would have been ample for the father’s verdict, but since we must reverse upon the question of failure to prove negligence in one aspect of the case which went to the jury, we merely advert to this question of the father’s damages for guidance upon a new trial.
The judgments and orders should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Clarke, P. J., Dowling, Finch and Martin, JJ., concur.
Judgments and orders reversed and new trial ordered, with costs to the appellant to abide the event.