Buscher v. New York Transportation Co.

Citations

• 106 A.D. 493
• 94 N.Y.S. 798
• 1905 N.Y. App. Div. LEXIS 2614

Syllabus

<p>Negligence — death of a boy run oxer by ay automobile — evidence requiring the questions as to negligence and, freedom from contributory negligence to be submitted to the jury — right of a pedestrian to assume that care will be exercised in turning a corner— ca/re required of an infant, when a question for the jury.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, a boy eight years and three months of age, who was run over and killed by the defendant’s automobile at the corner of Fortieth street and Tenth avenue in the city of New York, the plaintiff gave evidence tending to show that immediately prior to the accident, the automobile was traveling rapidly on Fortieth street; that it turned northward into Tenth avenue without slackening its speed and without giving any signal of its approach; that two persons who crossed the street ahead of the automobile were obliged to hurry in order to get out of its 'way: that at that time the intestate was about fifteen feet north of the corner of Tenth avenue standing on the sidewalk; that as the two persons mentioned crossed the street with their backs towardjhe, automobile, they heard a scream, turned and saw one of the hind wheels of the automobile passing over the boy’s body about two feet distant from the curb.</p> <p>Held, that the evidence was sufficient to require the submission to the jury of the questions of the defendant's negligence and of the intestate’s freedom from contributory negligence, and that it was improper for the court to dismiss the complaint;</p> <p>That the intestate had the right to assume that the operator of the automobile, in turning the corner, would exercise care and respect the rights of pedestrians;</p> <p>That while it is true that an infant, even of tender years, must be held to the exercise of some care in crossing a street, yet where he is under twelve years of age and it ddes not appear that he was entirely lacking in care, the quest