Ciaramella v. Orr , 214 N.Y.S. 713 ( 1926 )

Clark, J.

This is an action for damages for personal injuries. The accident occurred about five o’clock in the afternoon of July 27, 1925. Plaintiff, a little girl about five years of age, was playing on the grass about three feet from the beaten track of a rutty, unimproved country highway. The little girl lived with her parents, and was one of eight children. Just a short time prior to the accident she had been playing in one of her father’s fields near the highway fence which ran along what is called “ Smokey Hollow ” road. Then the little girl went through the fence to play bn the grass between the fence and the beaten track of the highway. Her little brother, eleven years old, was with her and a few feet distant inside the fence. Plaintiff had been playing on this grass plot a few minutes when a Ford truck driven by defendant’s wife, with his knowledge and consent, came along this road going in an easterly direction, and as it reached a point opposite where plaintiff was playing it jumped out of the ruts and hit her, causing the serious injuries complained of.

The evidence on the part of plaintiff was that after the accident defendant’s wife looked back, and then started her truck again, proceeding in the direction of Baldwinsville.

The only witness sworn who saw the accident, testified that as the truck approached the point where plaintiff was playing it was going “ pretty fast.”

At the close of plaintiff’s evidence defendant’s motion for a nonsuit was granted, the court holding that the little girl had no business playing on this grass plot in the highway, and that negligence of the defendant had not been established.

I think that the circumstances leading up to this accident, as testified to by plaintiff’s witnesses, called on the defendant to explain how the accident occurred, and that it was error to dismiss plaintiff’s complaint.

I do not agree with the learned trial court in his statement that the plaintiff had no business in the highway. Her brother, eleven years old, was with her, and was evidently her custodian for the time being. Although she had gotten outside of the fence from the field where he was standing, she was only in the highway a short time playing in the grass and this country road, from the appearance of an exhibit received in the case, was not burdened with very heavy traffic. '

The child was non sui juris, but under the circumstances the parents could not be charged with negligence as a matter of law, for it does not necessarily follow that the custodians of a child are negligent by permitting it to play in the street. (Ihl v. 42nd Street & G. St. Ferry R. R. Co., 47 N. Y. 317; McGarry v. Loomis, 63 id. 104; Ryczko v. Klenotich, 204 App. Div. 693; Regan v. International R. Co., 205 id. 425; Goldberg v. Graham, 146 id. 501.)

Plaintiff having been nonsuited, she is entitled to the most favorable inferences deducible from the evidence. (Janvey v. Loketz, 122 App. Div. 411.)

Under the evidence here, unexplained, the jury could have found that this accident was caused by the negligence of the driver of the truck in operating it improperly and at an excessive rate of speed, and the inferences to be drawn from the evidence should have been drawn by the jury, and not by the court. (Hart v. Hudson River Bridge Co., 80 N. Y. 622.)

In Chisholm v. State of New York (141 N. Y. 246) it is said: “ If different conclusions can be drawn from these circumstances it is a question for the jury.” (Also to the same effect Donnelly v. Piercy Contracting Co., 222 N. Y. 210; Mabs v. Park & Tilford, 200 App. Div. 75; Swistak v. Erie R. R. Co., 208 id. 553.)

Under the circumstances as disclosed by the evidence I think an explanation of how the accident occurred should have been required of defendant, and then upon all of the evidence it was for the jury to say whether or not the parents of the infant plaintiff were guilty of contributory negligence which was imputable to her, and whether or not the defendant wag guilty of negligence in the operation of his motor truck,

The judgment should be reversed on the law and a new trial granted, with costs to appellant to abide the event.

Hubbs, P. J., Davis, Sears and Crouch, JJ., concur.

Judgment reversed on the law and new trial granted, with costs to appellant to abide event.