Opinion
October 31, 1924.
Abraham M. Fisch [ George M. Curtis, Jr., of counsel], for the appellant.
E.C. Sherwood, for the respondent East River Mill and Lumber Company.
Benjamin C. Loder, for the respondents Joseph Beck and another.
Plaintiff, a boy between seven and eight years old, was stealing a ride on a truck proceeding north on the easterly car tracks on Second avenue in the city of New York. Jumping from the rear of this truck at some point estimated to be between twenty and one hundred feet south of the south crosswalk of One Hundred and Thirteenth street, he started to cross to the westerly side of Second avenue and was struck by the truck of the defendants Beck and Paul, which was proceeding in a southerly direction on the westerly car tracks. In consequence he was thrown in the path of the truck of the defendant East River Mill and Lumber Company, which was proceeding in a northerly direction behind the truck from which plaintiff had jumped, and his leg was severely injured, resulting in amputation below the knee.
In so far as the verdict concerns the defendant East River Company it is clearly right, since there is no proof of negligence against it. The appellant claims it was error for the court to charge that if the jury found the front wheel of the truck of this defendant did not pass over the plaintiff, their verdict must be for the said defendant, the appellant arguing that it would be possible for one guilty of negligence to avoid a person with the front and yet negligently injure him with the rear of a vehicle. While apart from this record it is quite possible to suppose such a case, yet a reading of the record shows that these words could only have been used to indicate that if the plaintiff was not hit by the front of the truck, then no negligence could be predicated against this defendant, because the plaintiff would then have been thrown by the truck of the defendants Beck and Paul in the path of the rear wheels after the front wheels had passed, since there was no proof of any deviation from a straight course. The weight of the evidence indeed was that the accident in fact so happened, one witness for plaintiff testifying that the plaintiff fell in front of the truck, against several witnesses for the defendant that he fell under the rear wheel. Under the circumstances of the case a finding of fact that the plaintiff was injured by the rear wheel necessarily absolved the defendant East River Company from any possible blame.
It further is contended that there was error in permitting a police officer to testify that a witness, not a party to the suit, had told said officer that the accident happened through the plaintiff's own fault. It is claimed that a proper foundation was laid for the introduction of this testimony; but assuming that it was error, it cannot be said to have been so materially prejudicial to the plaintiff as against this defendant that this court may not disregard the same. (Civ. Prac. Act, § 106.) The evidence was not prejudicial to the plaintiff on the issue of his contributory negligence, since the jury found the plaintiff free from contributory negligence when they reached a verdict in his favor against the defendants Beck and Paul.
We now come to the appeal as against the defendants Beck and Paul. If they were guilty of negligence and the plaintiff was free from any negligence contributing to the accident, then the amount of the verdict is inadequate. It would seem as if the jury had considered the plaintiff contributorily negligent, but had nevertheless awarded him an inadequate amount. Either the defendants are entitled to a verdict in their favor, or the plaintiff is entitled to recover damages commensurate with the injuries received.
It follows that the judgment in favor of the defendant East River Mill and Lumber Company should be affirmed, with costs; and the judgment against the defendants Beck and Paul should be reversed and a new trial ordered, with costs to the appellant to abide the event.
CLARKE, P.J., SMITH, MERRELL and MARTIN, JJ., concur.
Judgment in favor of defendant East River Mill and Lumber Company affirmed, with costs. Judgment against defendants Joseph Beck and Abraham Paul and order appealed from reversed and new trial granted, with costs to appellant to abide the event.