Thе decedent, a boy about five years of age, was standing on the sidewalk neаr the entrance to a shoe store whither he had gone accompаnied by his mother, when an automobile operated by the defendant suddenly left the roadway and, running with great force upon the sidewalk, struck and forced him against the building, сausing injuries from which he died after a period of conscious suffering. It appеars from the evidence, that the car was being driven over the portion of thе street in which the tracks of a street railway were’ laid, and that at the time of thе accident water was running in the track, while the surface of the street in the vicinity was wet and slippery. The jury could find, that as the defendant, without slackening but with increased speed, turned to get off the wet track, the car skidded on the rails and passed upon the sidewalk. The type of car, and the testimony of the expert cаlled by the plaintiff warranted a further finding, that by reason of their diameter the tires adhered tenaciously to the groove of the track, and, if an attempt were mаde to turn out, the tendency of the car, even with a dry track, would be to twist around аnd run on to the sidewalk, while with a wet rail the tendency to move laterally, and of the rear wheels to cling to the track, would be greatly increased.
A verdict cоuld not have been ordered for the defendant as he
The plaintiff’s expert, having testified in cross-examination that, frоm his experience in the same street, after skidding began it could not be stopped, was asked if he had not seen “other light machines skid at the place wherе this accident occurred.” It was discretionary with the presiding judge whether this evidence should be admitted, and its exclusion shows no reversible error. Jennings v. Rooney,
But, whilе the instructions were full and clear, the defendant excepted to so much оf them as permitted the jury “if you are unable upon all the evidence in the cаse to determine what it was that in fact caused this car to take the coursе that it did, then you may consider that it did do as it did and because the defendant was in the seat at the time, with the steering gear manipulating or endeavoring to control the car, you would be warranted if you find it to have been a perfect car and the cause of its acting as it did wholly unexplained, — you would be warranted in inferring that thеre was some improper, irregular act on the part of the defendant in fаiling to control it before it struck the boy. "Whether that irregular act was sufficient or whеther you are satisfied from the fact that the car took the course that it did that there was negligence on the part of the defendant sufficient to establish his liability in this action is for you to determine.” The defendant’s negligence, as we have sаid, depended upon the view
So ordered.
Notes
By Praü, J. The jury found for the plaintiff; аnd the defendant alleged exceptions.
The defendant testified that he had run an automobile about eight months, and never before on the street where the accident occurred.