Cook v. Standard Oil Co.

9 A.D. 105, 41 N.Y.S. 152

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Hatch, J. :

It is .conceded that the boy (the plaintiff) was struck by the pole of the defendant’s wagon as it was being driven along the street and that quite serious injury was the result. Three witnesses for. the plaintiff testified that the horses attached to the wagon were driven around the corner into the-street where the boy, then upon the crosswalk, was passing over the street. The boy states that he looked to see if anything was coming before he started to walk across the street, and that he saw and heard no team or wagon until it came suddenly upon him. . The other witnesses state that the team came suddenly around the corner, on a trot, when the pole came in contact with the boy. If. this testimony was entitled to credence, which was for the jury to' determine, and was believed by them, it warranted a finding of freedom from contributory negligence upon the part of the boy and of negligence on the part of the defendant. The boy was rightfully upon the street, and the defendant was bound to observe reasonable care as it turned the corner to avoid coming in contact with persons lawfully thereon. If the team came around the corner oil a trot, as they were immediately to pass over a spot where pedestrians might reasonably be expected and were likely to be encountered, the jury might- well say that the degree of care which the law exacts under such circumstances was not observed. But it is urged, that the witnesses for plaintiff testify that the wheels of the wagon passed .over the boy — an event which his subsequent condition showed to he impossible-— that the spot where he was struck was four feet from the curb, and that it was a physical impossibility for the wagon to turn the corner and come within that space. It is, therefore, contended that the story of these witnesses ought to have been disregarded ; that it was manifestly improbable, in fact, impossible, of occurrence. We see no glaring inconsistency in the statements that the wheels ran over the boy although in fact it did not happen. It might well be, from the point of observation of the witnesses, that the wheels of the wagon appeared to pass over the boy. The essential fact of the matter is, that the boy was knocked down by the pole of the wagon, upon which point all agree.’ Because the witnesses say the wheels also ran over him does not alter this fact, nor does it necessarily discredit the witnesses, for what they say may have appeared, so .to them, and a variance from what the fact is, is far from establishing that the witness testifies falsely or improbably. The variation from the fact may be the very thing which evidences the entire truthfulness of the witness, and which establishes the probability of his story upon the essential fact. As applied here, we do not think the court would have been warranted in-directing the jury to disregard the testimony because of this variation from the conceded facts.

So far as the physical impossibility of the pole coming in contact with the boy in the position in which he was placed by the witnesses is concerned, we may observe that the case is destitute of proof to show that the wagon was not of such a character as that its forward part could have been turned into this place. We may take notice that wagons are- so constructed that the pole and forward wheels may be turned at a right angle to the hind wheels and body of the wagon, and we are not informed but that this wagon may have been of that, character. How far the corner of the curb was set back from the roadway at this point is not shown, and we may not say that it was impossible for this wagon to turn and come within four feet of the side of the street without coming in contact with the curb at the corner, in view of the fact that the pole sfruck the boy. Nor is there any evidence that the hind wheel of the wagon did not come in contact with the curb. Whatever observation may demonstrate respecting many wagons turning many street corners, such general observation does not render the fact so certain as that the court can say as matter of law-that what the witnesses say was an impossible occurrence with this wagon at this street corner, or that this wagon in fact cleared the curb as it turned the corner. It could have run-over it. But aside from this, while the distance is given as four feet from- the curb to the place where the pole struck the boy, which, is adhered to with some pertinacity by the witnesses, yet no measurements were made, and the witnesses expressed their opinion respecting the distance. ' Variations of distance, circumstances attending the transaction and details as to how the particular accident happened, have never been held sufficient to withhold a case from_.the jury, even though the witnesses werexat a distinct variation with other witnesses or with certain conceded facts, where the essential fact of the injury had been proved. (Stackus v. N. Y. C. & Id. H. R. R. Co., 79 N. Y. 464; Massoth v. D. & H. C. Co. 64-id. 524; Greany v. Long I. R. R. Co., 101 id, 419,)

' There' is nothing before us that requires- the application of any different rule, in this case. There was not entire consistency in the testimony of defendant’s' driver, and we think the. case, presented a question of fact for the jury, and that nothing which appears either upon the evidence, the submission, or the amount of the verdict, calls, for our- interference.

The judgment should, therefore, be affirmed, with costs.

All concurred.

Judgment -and order unanimously affirmed, with costs,