Opinion
January 24, 1939.
Morris Nadel. for the plaintiff.
Sidney G. Madenberg. for the defendant.
The case was tried without a jury.
Under the circumstances disclosed by the evidence, the child, four months over three years of age at the time of the accident, is not to be charged with negligence. (Dom. Rel. Law, § 73.)
Defendant's truck was, as defendant says, twenty-five or thirty feet away from the two children when he first saw them. If they had not changed their position he would, according to his testimony, have passed them five feet to his left. He testifies that he was going twelve miles an hour. Depending upon two warnings which he asserts he sounded, he did not slacken speed until one of the children, the infant in this case, ran into his truck, too late for the defendant to stop without hitting the child. In effect defendant testifies that he made no attempt to slow down or stop his truck until the infant plaintiff suddenly ran toward it. He was negligent in not taking into his calculations the "heedlessness and indiscretion" common and usual in children three or four years old. ( Collins v. South Boston Railroad Company, 142 Mass. 301, 312; 7 N.E. 856.)
It is found that negligence is not chargeable to the infant and that the accident was due solely to negligence of defendant.
Defendant's motions to dismiss are denied. Judgment in the sum of $400 on the claim made for the infant.
The parent's claim was not presented at the trial.