Opinion
May Term, 1901.
L. Sidney Carrère and George O. Redington, for the appellant.
Samuel S. Whitehouse, for the respondent.
The plaintiff entered a judgment for $2,125 damages for the death of his child upon a verdict at Trial Term in his action against the defendant based upon negligence. The defendant appeals.
The child, aged four and a half years, lived with his parents in a tenement in a built up block on Montrose avenue, a broad asphalted street in the borough of Brooklyn. The accident occurred on that avenue about half-past five o'clock in the afternoon of a clear day in July. The child's mother while cooking supper suffered her child to go out onto the sidewalk with her sister-in-law. The child had been out of doors about ten minutes before the accident occurred. The sister-in-law was on the sidewalk with a little girl and an infant. The child was on the sidewalk playing with sand, and when last seen by his aunt was sitting on the curbstone about a minute before the accident. The child mounted a tricycle and was on the asphalt pavement about a foot away from the curb. He was a large boy for his age, had "something white on," and was accustomed to use the tricycle. He was going in the same direction as the team and the truck. He turned to laugh at one of the witnesses, and he had but time "to go a few steps" thereafter when the team and truck overtook him, the front wheel struck him, threw him off the tricycle under the wheels and the rear wheel ran over him and killed him. The driver testifies that he was driving a two-horse covered van, jogging along about five or six feet from the curb, that he could have stopped his team within seven or eight feet, and that he could see "right out on either side" of him. There is testimony that the truck slanted in toward the curb as it went along and before it struck the deceased, that there was no other truck or wagon near at the time, and that there was no other vehicle coming in the direction that the truck was traveling. The truck did not stop after the accident, and the testimony offered by the defendant is of the entire ignorance of the driver and of his helper. The father and the mother of the child testified that they had told the lad always to stay on the sidewalk and to play there. The tricycle was owned by a playmate.
I think that the question of negligence of the defendant was for the jury. ( Birkett v. Knickerbocker Ice Co., 110 N.Y. 504; Moebus v. Herrmann, 108 id. 349.) The question of contributory negligence was also for the jury. The presence of the lad on the sidewalk was not the negligence per se of his parents, or of his immediate custodian ( Kunz v. City of Troy, 104 N.Y. 344; Birkett v. Knickerbocker Ice Co., supra; Huerzeler v. C.C.T. R.R. Co., 139 N.Y. 490), nor was personal negligence to be attributed to the child. ( Zwack v. N.Y., L.E. W.R.R. Co., 160 N.Y. 363; Huerzeler v. C.C.T.R.R. Co., supra.) The temporary incursion of the child into the road way was not sufficient to attribute negligence per se to his parents or to his immediate custodian. ( Weil v. D.D., E.B. B.R.R. Co., 119 N.Y. 147, 153, and cases cited.)
The learned counsel for the appellant contends that there is no evidence that the accident was caused by the truck of the defendant. The accident happened about half-past five o'clock P.M. on July 25, 1900, very nearly in front of 35 Montrose avenue, between Lorimer street and Union avenue. Louisa Beleski, who took the lad up after the accident, testifies that the words "Honest Long Cut" were on the truck, that she saw the truck continue on its way to the corner of Union avenue, and that Mr. Kirsch and a lad ran after it. Mr. Kirsch testifies that after the child was taken up he followed the truck until he met Freedman, who said: "`It is one of the Honest Long Cut.'" Mr. Wien testifies that after hearing the outcry, he looked out of his window and saw a wagon with "Honest Long Cut Tobacco" on it, and that he saw Kirsch run after it and turn into Union avenue. Mr. Freedman corroborates Mr. Kirsch. Mr. Weil testifies that on the day of the accident he had seen one Cassidy on Scholes street delivering goods, and that "Honest Long Cut" was upon the truck. The defendant admitted by his answer that he trucked for the American Tobacco Company, the name which was on his trucks; that on the day of the accident one Cassidy, then in his employ, on the afternoon of July 25, 1900, was in charge of one of his trucks engaged in defendant's business, and in course thereof drove through Montrose avenue, Brooklyn, between Lorimer street and Union avenue. Cassidy, the driver called by the plaintiff, by his testimony reiterated the admission and testified that he was in Montrose avenue between five and six o'clock, and on the last occasion he drove towards Union avenue. He testified that he drove a two-horse truck, the body of which was painted black, with yellow letters which read "Honest Long Cut," and that it also bore the inscription "American Tobacco Company." McCrystal testified that he was on the truck with Cassidy and that they drove in Montrose avenue, between five and six o'clock on that day, towards Union avenue, and that before that they had delivered goods in Scholes street. The running over was not denied; as I have said, the plea of the driver and his helper was entire ignorance of any such occurrence. There is, then, direct testimony that a truck bearing the inscription "Honest Long Cut" ran over the child. There was not only the identity of name with that upon the truck of the defendant, but identity of time and identity of place, and the logical inference that may be drawn from the mere identity of name "rises in strength" with circumstances indicating the improbability of there being two such wagons at the same place and at the same time. (Whart. Ev. [3d ed.] § 1273; Lawson Presump. Ev. rule 63; Daby v. Ericsson, 45 N.Y. 786.) There is not the slightest pretense that such was the case. The proof is that there was not any other vehicle of any kind upon that part of the street when the accident happened. Clearly the testimony furnished evidence to warrant the jury in its finding that the lad was run over by the truck of the defendant.
The judgment must be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.