210 A.D. 671 | N.Y. App. Div. | 1924
On the afternoon of June 7, 1921, the deceased, six years and ten months of age, was walking easterly on the southerly side of the State highway just easterly of New Haven, Oswego county. It was a clear, bright day. Her brother Francis, nine years of age, and Vernon Schipper, a boy eight years of age, were walking with her. At the time the defendant approached the point in question driving his automobile easterly. He saw the children as he came around a slight curve in the highway two-tenths of a mile west of where they were. About that time they left the
One witness testified that the car was going fast. One of defendant’s witnesses estimated that the car was traveling, at the time of the accident, sixteen miles per hour. Neither the Taggart boy nor the Schipper boy heard the car before .the accident happened.
At the close of the evidence the learned trial court directed a verdict for the defendant. We think the evidence as above stated made out a cause of action which should have been sub•mitted to the jury. (Highway Law, § 286, subd. 8, added as subd. 2 by Laws of 1910, chap. 374, as renum. and amd. by Laws of 1918, chap. 540, and since re-enacted by Laws of 1921, chap. 580; Gen. Highway Traffic Law, § 13, subd. 2.)
The version of the accident as given by the defendant and his witnesses was entirely different. They testified that the deceased darted into the. highway in front of the car just at the moment of the accident. That testimony presented a question of fact which should have been passed upon by the jury.
It is urged by the respondent that this court should not consider the testimony of the Taggart and Schipper boys. Both were sworn as witnesses and cross-examined by the respondent’s counsel. No motion was made to strike out their testimony. They were examined as to their competency, after the oath had been administered. While the Taggart boy was being examined the court intimated that he was not a competent witness. The appellant’s counsel asked if he might examine him further and the court consented. Counsel then proceeded with the entire examination and the question of the competency of the witness was not again
The judgment should be reversed upon the law and a new trial granted, with costs to the appellant to abide the event.
Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ. All concur.
Judgment reversed on the law and new trial granted, with costs to appellant to abide event.