Foley v. Hamilton News Co. ( 1965 )

Memorandum by the Court. Defendants appeal from a judgment entered upon a jury verdict in an action for wrongful death and from the order denying their motion to set aside the verdict. In the late afternoon of September 6, 1961 plaintiff’s intestate, aged seven years, was fatally injured in a collision between the bicycle which he was riding and a delivery truck owned by one defendant and operated by the other. The accident occurred in the parking lot of a shopping center. It is not contended that the deceased was conteibutorily negligent. Appellants’ thesis is that plaintiff’s proof failed to establish the negligence of defendants. In our view there is basis in the record which would justify a finding by the jury that defendant operator failed to use due care in the circumstances. The trial court did not err in permitting the introduction of medical evidence of the injuries which resulted in the death. Judgment and order affirmed, with costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.