105 N.Y.S. 547 | N.Y. App. Div. | 1907
All'the' material facts in this case áre found in Turck v. New York Central & Hudson River R. R. Co. (108 App. Div. 142). There this court reversed a judgment in favor of the administrator of Turck, Turck and.the plaintiff’s intestate were ki'lléd by the defendant’s tráin ih collision with an automobile in which they were' riding. '.Turck was managing the machine, familiar with its operations and with the locality.. Sherwood was.riding at the invitation of Turckhad never been in an automobile beforewas sixteen years and about three months of age, and had been known' to pass this crossing two' or three times before on a bicycle or afoot. There was sufficient evidence, showing defendant’s negligence. It is claimed, however, that within, the decision of this court, in' the Turch case, the plaintiff’s intestate was. not shown free from contributory negligence. His tender years, entire want of knowledge ás to ah automobilé ; the fact that the machine was being driven by an older person whom he knew was familiar with.its. operation and was fully able to' manage and control it;, that Dr. 'Sahler, with his family, was driving in his carriage immediately ahead of him and' was making the crossing, together with the entire situation at the crossing, present a case where it cannot be said as a matter of layr that the. plaintiff’s intestate was guilty of contributory negligence, or that he showed less care than á lad of his years would Ordinarily exercise under like circumstances. Knowing nothing about the machine, and being With a man who was familiar with its manage- ' mentj he could well feel a certain degree of safety until lie -saw an emergency arising, and if lie saw such an emergency he was practically helpless, as he could do nothing to stop: the machine. With the noise'of the train the driver could not hear his speech, and an attempt to dictate to the driver might divert his attention- and do more harm than good.. There was perhaps .nothing for him to do except to jump from the -machine as it was going forward. Possibly that would have been less1 dangerous, -but the defendant’s negligence created the emergency and the intestate was not required to’ ' choose at his -. peril what ultimately would prove the- safer course, hut he was only called upon to use his best care . and judgment as the situation then presented itself . to him. Did lie' under all the circumstances conduct himself as a lad of his age ordinarily would?
Judgment and order unanimously affirmed, with costs..