Opinion
June 29, 1945.
Appeal by defendants from a verdict for damages. Plaintiff's intestate was struck by the left rear wheel of a trailer truck owned by the corporate defendant and operated by the individual defendant. The defendant company's motor vehicled truck and trailer combination operated by the defendant Burnash upon a State highway, collided with and fatally injured plaintiff's intestate, an eight-year-old child. Exclusive of its concrete shoulders, the paved portion of the highway was thirty feet wide. The child started to cross the highway from the side opposite the defendant's right of way. There was evidence that she stopped midway the paved portion of the roadway prior to the collision; that the truck passed her by but so closely that some portion of the side of the truck or trailer caught and drew her under the wheels. There was also evidence that the defendant operator did not see the child prior to the collision and gave no special warning of his approach. No other traffic was moving on the highway in the immediate vicinity and there was evidence to uphold a finding that naught else obstructed the operator's view of the girl and roadway for some two hundred feet straight ahead prior to the collision. Upon the question of fact thus presented as to the defendant's negligence and the contributory negligence of the deceased, there was sufficient evidence to uphold the rendered verdict which was not excessive in amount. The judgment and order appealed from should be affirmed. Judgment and order appealed from affirmed, with costs. All concur except Hill, P.J., and Foster, J., who dissent.