Doyle v. Foster ( 1908 )

Ingraham, J.:

This action was tried with Doyle v. Foster, No. 2 (128 App. Div. 281), decided herewith, for the injuries sustained by the plaintiff in consequence of being run over by a truck belonging to the defendant in the street. The injury resulted in the amputation of his left leg ■and there were other serious injuries.

The plaintiff, a boy of thirteen years of age, testified that' he was in Barrow street shortly after three o’clock on the 8th of February, 1906 ; that he was about three feet from the gutter in the roadway when the shaft of the defendant’s wagon struck him and knocked him down; that he was standing with his back' towards ■ the east looking towards the west when the wagon came up behind him, and had been standing in this position about three minutes before he was struck; that he did not hear the wagon coming, neither the driver nor anybody else spoke to him before he was struck; that when he was injured he was watching a “ cat game ” on Barrow street; that he was not playing, but just watching thé game; that he had seen the horse that hit him two or three minutes before; that at the time of the accident he was twelve years old. Upon this testimony the court dismissed the complaint.

I know of no rule which imputes contributory negligence as a matter of law to a person who stands three minutes in the roadway of a street. Whether or not the plaintiff is non sui juris is of no consequence. He was bound to exercise the care and caution of a reasonably prudent person of his age and mental development, and n this case, whether he was guilty of negligence was for the jury. As to the defendant’s negligence, that also was a question for the jury. The plaintiff was standing in the street in which, so far as appears, there were no other vehicles or obstruction. The truck ■belonging to the defendant drove up behind him and ran over him without warning; this was evidence of the negligence of the driver.

1 It follows that the judgment must be reversed and a new trial ■ordered, with costs to the appellant to abide the event.

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.