Conti v. Luchs

Action by infant plaintiff to recover damages because of personal injuries suffered as a consequence of being struck by defendant’s car while he was proceeding on the left side of a roadway, that is, against traffic, with a small contrivance called a “ dolly ”. Companion action by his mother for expenses and loss of services. Judgment for plaintiffs unanimously affirmed, with costs. (1) The fact that the contrivance did not have a light upon it and that the infant plaintiff was proceeding on the left side of the road did not establish that said plaintiff was guilty of contributory negligence as a matter of law. The question was one of fact for the jury, under all the circumstances. (2) The receipt of testimony of the witness Murphy that in his opinion a person dressed as the proof showed the infant plaintiff was dressed, while within 35 or 40 feet of the street light nearby could be seen by a person with normal vision for a distance of 100 to 150 feet, was not prejudicial error. The uncontradicted proof was that the street light cast a beam 75 feet from its center and that the street light was directly across from the place of the accident on the roadway, which point was less than 30 feet from the light. That proof, under the circumstances, furnished a sufficient basis for a finding by the jury, as a matter of common knowledge, that in the exercise of ordinary care a person with ordinary vision could see the infant plaintiff while 150 feet away from the place where he was standing. Present — Lewis, P. J., Carswell, Johnston, Adel and Sneed, JJ.