Blair v. New York Transp. Co.

117 N.Y.S. 1129

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 29, 1909
• Status: Published

Opinion

MacLEAN, J.

Whatever happened occurred at the incline about midway between Fifth avenue and Central Park West on the “transverse road” continuing Eighty-Sixth street through the Central Park. Thomas, the boy plaintiff, was pushing westward a small laundry cart, on which was another boy or two, on the northerly trolley track, and when just about opposite the tails of the team and the front of a lumber truck stalled on the grade, passing a trolley car, bumped into this vehicle, an electric landaulet, which, coming from the west, turned from the southerly to the northerly side of the latter road so as to pass an obstructing truck according to some witnesses, but according to the chauffeur to let pass a trolley car ahead of which he could not keep up the grade. Whether or not the collision came by common impact, or whether the landaulet had stopped or was just stopping as they came together, whether the boy could have escaped injury by a timely stepping upon the sidewalk, whether a lumber truck or car was in the way, with other circumstances of the actual situation affecting the respective conduct and responsibilities of those immediately concerned, is only determinable by according belief or disbelief to the conflicting statements of witnesses, differing, perhaps honestly enough, even with those called on the same side. The physician’s testimony hardly carries a favorable impression, and some of it might have been excluded under straiter rulings. The damages awarded, especially to the father, seem large. Prejudice prevalent against automobiles counted perhaps, probably did count, against the defendant; but all suffering entities, corporate and carnal, are exposed to epidemics. It is hard to say that, with these items deducted, the verdict is against the weight of evidence. Judgments affirmed, with costs. All concur.