Opinion
October 2, 1936.
Present — Hill, P.J., Rhodes, McNamee, Bliss and Heffernan, JJ.
Appeal by the defendants from a judgment and order in a negligence action. Plaintiff's intestate was a boy seven years old. He was going home from school at noon with a group of other boys. Other children and groups of children were following. One of the other boys was chasing the intestate, who ran out into the highway from the sidewalk on which they had been walking and crossed the highway pavement, and then was running back again towards the sidewalk which he had left, and was hit by the automobile owned by one defendant and driven by the other; and from the injuries thus received he died. The sidewalk paralleled the highway on the east side at a distance of some nine or ten feet. At the place of the accident the road is comparatively straight, with an unobstructed view for perhaps a quarter of a mile. No other traffic was present at the time. The evidence in plaintiff's case indicates that the driver of the car did not sound a horn nor alter the speed of the car as she was passing the children mentioned. As a part of plaintiff's case, one witness testified that the driver stated immediately after the accident that she did not see the boy until he was hit, or immediately prior thereto. Defendant's motion to dismiss at the close of plaintiff's case was properly denied. No motion was made by the defendants at the close of all the evidence, and there were no exceptions. The question of the decedent's contributory negligence was a question of fact. The case was properly submitted to the jury. Judgment and order unanimously affirmed, with costs.