In Abbott v. Railway Express Agency, 108 F.2d 671 (4th Cir. 1940), the driver not only spoke to the injured boy and his companion but actually saw them in a place of safety before the injured boy was run over. Smiel v. United States, 147 F. Supp. 835 (N.D.N.Y. 1957), involved a situation where in order to have seen the decedent the driver would actually have had to look under his truck. In Wallach v. R. Gray's Sons, Inc., 244 App. Div. 873, 280 N.Y.S. 79 (3d Dept. 1935), the injured infant ran into the defendant's truck by darting from the sidewalk past a parked car. Cantanno v. James A. Stevenson Co., 172 App. Div. 252, 158 N.Y.S. 335 (2d Dept. 1916), involved a child who ran into the hub of a wagon wheel which projected two inches over the curb.

After the trial ended in a hung jury, the Surrogate's Court, upon granting the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate. Contrary to the objectants' contention, the Surrogate's Court properly entertained the motion after the trial ended in a hung jury ( see Gullian v. Newcombe Co., 27 AD2d 479, 480; Gallagher v. Citizens Water Works of Town of Highlands, 278 App Div 792, 793, affd 303 NY 805; Wallach v. Gray's Sons, Inc., 244 App Div 873; cf. Slusarczyk v. Slusarczyk, 41 AD2d 593). Moreover, the Surrogate's Court properly granted the proponent's motion.

Judgment reversed, on the law and the facts, without costs, and new trial granted as against defendant City of New York. In our opinion, the finding of negligence implicit in the jury's verdict is against the weight of the credible evidence ( Frost v. New York City Tr. Auth., 29 A.D.2d 978; cf. Scanlon v. Temple, 297 N.Y. 516; Meadows v. Pless, 27 A.D.2d 747; Acevedo v. City of New York, 15 A.D.2d 899, affd. 17 N.Y.2d 843; Wallach v. Gray's Sons, 244 App. Div. 873; Brianzi v. Crane Co., 196 App. Div. 58). Day v. Johnson ( 265 App. Div. 383) is not controlling. In that case, there was sufficient evidence to support a finding that the defendant was operating his vehicle "at a rate of speed far in excess" of the limit permitted by law (p. 386). Herbst v. Balogh ( 7 A.D.2d 530) is distinguishable.