Allison v. Hathorn

248 A.D. 642

Opinion

Appeal from a judgment of the Trial Term of Tompkins county denying a motion to set aside a verdict of no cause of action, and for a new trial. There was evidence from wMch the jury could have found that Medford S. Allison lived on the north side of a State road running east and west, and that his barn and milk house were on the south side; that he and Ms eleven-year-old son, and a compamon, were about to cross the road from the south to the north, in daylight; that the boy was intelligent and bright; that it had been raimng, and the pavement was wet; that the road was straight to the east for 800 feet, and to the west for 700 feet; that the plaintiff saw the defendant coming when he was 300 or 400 feet away, and that he and the two boys stood at the side of the road; that the concrete pavement was eighteen feet wide; that the defendant did not sound a horn nor change Ms course, and that all involved understood the situation; that the father attempted to seize the boy as the boy dashed across the road when the car was only a few feet away; that the defendant applied Ms brakes, and attempted to avoid the boy, and stopped when he had gone less than forty feet; that the defendant’s speed was about thirty-five miles an hour; and that after the accident the defendant asked the plaintiff, “ You don’t think tMs was my fault, do you?” and that the plaintiff answered, “ No, the boy jumped right in front of you.” The evidence presented a clear question of fact for determination by the jury. Judgment and order unanimously afBrmed, with costs. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffeman, JJ.