36 Barb. 230 | N.Y. Sup. Ct. | 1862
By the Bourt,
The plaintiff was run over by a car of the defendants in July, 1858, at the corner of North Tenth and First streets in Williamsburgh, and very severely injured, and this action is brought for damages for this injury. It is conceded that the defendants’ driver, who had the control of the car, was guilty of negligence. He was sitting at the time upon the railing of the platform of his car, his face turned away from the horses or mules, and from the direction in which the car was going. His attention was absorbed by a bird which he had in his hands, while the reins of his animals were twisted about the brake of the car. The car was drawn by mules, and was proceeding at a steady though not a rapid pace. It is not using too strong language to say that this was gross negligence on the part of the driver of such a vehicle. It was in effect to leave the vehicle moving uncontrolled through the public streets—a vehicle which is in some respects more dangerous to other passengers on foot or in carriages than any ordinary carriage. If the danger of a collision with a rail road car is not greater, the consequences of such a collision, when it does occur, are far more serious and less easily prevented than in the case of common vehicles.
The plaintiff was coming down North Tenth street as the car was coming along First street, and in attempting to cross the track in advance of the car, he was struck by some projecting portion of the car, thrown down and run over by both wheels. At what distance from the crossing of the two streets the car was when the plaintiff set out to cross First street, does not perhaps very distinctly appear. One witness
’ This, however, is not the point upon which the present
My learned associate before whom this cause was tried granted a nonsuit, on the ground that the presence of such a child alone in the street, was of itself such an act of negligence, or such evidence of negligence, in his parents, that he could not recover for the injury which befell him. I agree that, unexplained, it would be so. But the question is, whether this child was in the street by the consent or through the neglect of his parents, or in spite of their precautions ; and whether those precautions were sufficient to answer the
I am not prepared to decide these questions as matter of law, or to lay down as a rule or proposition expressly, that the parents of this child did not exercise ordinary care in watching it, and preventing its getting into the street where it would be in danger. It certainly was not in the street by their consent or permission, and although a pierfect restraint, an absolute fastening of every access to the street, would of course have confined it to the house, it cannot be that ordinary care in the case of a child of this age demands so complete an imprisonment. I cannot say that these parents should be held guilty of a moral wrong in neglecting their child when he found his way out of the house, and therefore responsible, morally at least, for the painful consequences, as they must be if they were guilty of such negligence as removes the ground of this action. Such consequences were possible, but I cannot say they were probable, from what they did or what they omitted, and it is only for a neglect of probable consequences that they are responsible. The
Bmott, Brown and ScrugJiam, Justices.]
I am of opinion that this- nonsuit should be set aside and a new trial ordered; and in this opinion, upon consideration, my brethren concur.