Potter v. Leviton

¥r. Justice Waterman

delivered the opinion of the court.

The plaintiff below was about four years old when injured. He was lawfully on the street crossing and the party operating the road was bound to exercise ordinary care for the safety of this child. This little one was at a place where the company knew pedestrians and teams were to be expected and watched for. If the boy suddenly ran in front of or against the side of the car in a manner not reasonably to be expected, and was injured in consequence of such sudden and unexpected movement on his part, no recovery by him can be had.

If, on the other hand, being upon the track, where, by the exercise of reasonable diligence, he could have been seen by the motorman in time to have stopped his car and thus avoided the injury, it was negligence not to have stopped in time to have prevented the accident.

Contributory, negligence can not be imputed to this child for conduct which in an adult would have been a want of ordinary care.

Some of the witnesses for the plaintiff below were confused in their statements as to which car it was by which the boy was hurt as well as to the place from whence he came and the direction in which he was going.

The injury was to the toes of the left foot, a number of which were crushed and had to be amputated.

The jury evidently did not find that the boy ran into the side of the car; nor do we see how, in view of the injury, this could have been the case.

The judgment of the Circuit Court is affirmed.