Opinion
September, 1912.
At the time of the accident the deceased was between nine and ten years of age. On the afternoon of May 27, 1910, with one or more playmates, he was playing ball in Washington street in the village of Peekskill, about twenty or twenty-five feet north of the north crossing of Hudson avenue, which avenue crosses Washington street at right angles. The defendant's automobile approached from the north at a speed of from fifteen to eighteen miles an hour. There was no other travel in the street, and the children were seen by the occupants of the automobile before the Hudson avenue crossing was reached. The deceased started on a fast run to cross the street in a diagonal direction from the east to the west side. As the automobile approached the boy its course was changed diagonally toward the west, so that it and the boy came together at or near the curb on the west side of the street. The defendant contends that there is no evidence of negligence on the part of the chauffeur; that the deceased was guilty of contributory negligence, and that the verdict is excessive. These are the questions argued. It is urged that there is no evidence that the automobile ran over the deceased; that the evidence establishes that the deceased fell and received the injuries causing his death as the result of the fall alone, and that the automobile did not even come in contact with him. This contention overlooks the evidence of the witness Mead, who was an eye-witness of the accident, who testifies that he saw the automobile hit the boy and knock him down, then rise as though it was running over something, settle down and stop. "The car followed the boy clean across the street and caught him, caught him in the gutter," the admission of the chauffeur who testified on cross-examination, "I said this morning that the front wheel of the car hit the boy, passing over him * * *. The front wheel of that car hit the boy;" the testimony of the physician that there was a fracture of the skull at the base of the brain, which was the fatal injury, and a compound fracture of the right arm, which was "crushed and the tissues were lacerated and torn and dirty, dirt ground into them," which the doctor testified could not have resulted from a fall, and this conclusion is made apparent by the undisputed fact that the boy fell forward on his face, while the fracture causing death was on the back of the head, at the base of the brain. It is also shown that the body of the boy was taken by the chauffeur from under the car, between the front and rear, left-hand side, wheels. This evidence was sufficient to take the case to the jury on the question of defendant's negligence and the freedom from negligence of the deceased. These questions were for the jury to determine. The learned trial justice submitted them under a charge free from error, and the verdict rests upon sufficient evidence to sustain it. Our attention is called to Seaman v. Mott ( 127 App. Div. 18) and West v. Metropolitan Street R. Co. (105 id. 373) as being similar cases, controlling the disposition of this appeal. I do not so regard them. In both of those cases the decision was based upon the fact that no act or omission of the chauffeur permitted a finding of his negligence. In the case at bar there is the evidence of the change of the direction of the automobile, from which the jury might have found that the accident would not have occurred had not the chauffeur changed his course, and in addition the testimony of the eye-witness Mead, which is sufficient of itself to permit the finding that the chauffeur was negligent, together with the statement of the driver, made immediately after the accident to an officer of the Peekskill police force, that "he thought he could get by that boy by going around him to the left," and "did not shut off the power until he got into the gutter," and the admission to Sergeant Burke, at the same time, that "at the time of the accident he was going at the rate of 15 or 18 miles an hour." Clearly this evidence shows acts and omission permitting a finding of negligence in the operation of the car, and removes the case from the operation of the rule declared in those cited. Although there is some evidence that the horn of the automobile was sounded as the car approached the children, the jury could find to the contrary on the evidence of Mead and of other witnesses who were so close to the place of the accident that they could have heard the horn had it been sounded, and testify that they did not ( Hintze v. New York Central H.R.R.R. Co., 149 App. Div. 217), and that the car was being driven fast, which, as was held in Gross v. Foster (134 id. 243), was sufficient to warrant a finding of defendant's negligence. I do not regard the verdict as excessive, and the judgment and order must be affirmed, with costs. Thomas and Woodward, JJ., concurred; Jenks, P.J., and Burr, J., dissented. Judgment and order affirmed, with costs.