Ramirez v. Perlman , 130 N.Y.S.2d 398 ( 1954 )

Peck, P. J.

(dissenting). At the time of the accident plaintiff was in all respects a normal child nearly ten years of age. I am sure that any such child in the city of New York knows of the danger and likely consequence of running out into the street between parked ears without looking. He may unthinkingly do it, but he is then certainly negligent by standards ingrained into him.

Were there any question as to the normality of this child for his age at the time of the accident, as there was afterward due to the accident, there might be some jury question as to whether something less in care would be expected of him than would be expected of an ordinary ten-year-old. There was no such question, however. No question could remain, therefore, on this branch of the case, other than was it negligent for a normal ten-year-old boy to act the way this boy admittedly did. It seems to me to be an abandonment of law to give the jury the opportunity of making a finding contrary to the obvious.

The charge to the jury in this case was painstaking in delineating the issues and in giving the jury every opportunity to find that the facts were other and more favorable to plaintiff than he testified to on his own cross and redirect examination. It was only if the jury found as a fact that the child had darted out into the street between parked cars without looking that they were directed to bring in a verdict for the defendant. To have told the jury, as requested, that with such a finding of fact they could still find that the plaintiff was not contributorily negligent and bring in a verdict for the plaintiff would, in my opinion, have given the jury a license altogether inconsistent with law. I dissent and vote to affirm.

Cohn, Bastow and Bergan, JJ., concur with Callahan, J.; Peck, P. J., dissents and votes to affirm, in opinion.

Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.