Pardy v. Kendall, 262 A.D. 858

Pardy v. Kendall

262 A.D. 858

| N.Y. App. Div. | 1941

In an action on behalf of an infant to recover damages for personal injuries sustained by him and by his father for loss of services and medical expenses, judgment for plaintiffs reversed on the law and the facts, with costs, *859and complaint dismissed on the law, with costs. Appeal from order denying appellant’s motion to set aside the verdict and for a new trial dismissed, without costs. The infant plaintiff coasted on a sled in a westerly direction down Walnut street in the village of Dobbs Ferry, in violation of a village ordinance. This was an icy hill and he proceeded at a fast rate of speed and with increasing momentum and so continued across the intersection of Walnut and Main streets, despite the fact that his view to the north of the intersection was obscured and despite the presence of a stop sign. He came in contact with appellant’s automobile, which was proceeding southerly on Main street. The infant plaintiff knew, prior to the day of the accident, that this was a dangerous hill. At the time of the accident he relied upon an eight-year old boy to stand at the intersection and warn him of danger as he approached on the sled. When this boy saw appellant’s car thirty feet away from him, he yelled to the infant plaintiff, who was then nearly at the bottom of the hill. In the light of all the circumstances, and particularly the knowledge of the infant plaintiff of the danger, we are of opinion that he failed to exercise the reasonable care required of him and was guilty of contributory negligence as a matter of law. Hagarty, Adel and Taylor, JJ., concur; Lazansky, P. J., concurs as to reversal of the judgment, but dissents as to the dismissal of the complaint and the dismissal of the appeal from the order, and votes to reverse the order and grant the motion for a new trial on the ground that the verdict is against the weight of the evidence; Close, J., dissents as to the reversal of the judgment, the dismissal of the complaint and the dismissal of the appeal from the order, and votes to affirm the judgment and order on the ground that the negligence of the operator of the automobile and the alleged contributory negligence of the child were questions of fact for the jury.