Delkowsky v. Dry Dock, East Broadway & Battery Railroad

Appellate Division of the Supreme Court of New York

Delkowsky v. Dry Dock, East Broadway & Battery Railroad

79 N.Y.S. 1104, 78 A.D. 632

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 23, 1903

StatusPublished

Cited by3 cases

This text of 79 N.Y.S. 1104 (Delkowsky v. Dry Dock, East Broadway & Battery Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Delkowsky v. Dry Dock, East Broadway & Battery Railroad, 79 N.Y.S. 1104, 78 A.D. 632 (N.Y. Ct. App. 1903).

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Opinion

PATTERSON, J.

In this case it appears that the plaintiff’s intestate, a very bright, intelligent child, seven years and eight months of age, who had been attending school for two years, on the 5th of September, 1901, attempted to cross East Broadway, in the city of New York, and while doing so he was run over by a horse car belonging to the defendant, and sustained injuries from which he died the next day. There was evidence of negligence of the driver of the car, and also evidence from which the jury might infer that there was contributory negligence. The court, in its charge, stated to the jury that it was for them to say whether the plaintiff might not have crossed the track of the defendant’s road in safety, by the exercise of such care as was reasonably to be expected of one of his age. Upon the subject of the degree of care required of an infant of that age, the learned trial judge properly instructed the jury, but also charged them that, even if they should find that the plaintiff’s intestate was guilty of contributory negligence, the question remained whether the defendant’s driver, by the exercise of reasonable care and prudence, might have avoided the consequences of the child’s negligence. That instruction was repeated, and was duly excepted to. There is nothing in the evidence to show any new intervening circumstance which would authorize the elimination' from the case of the consideration of the child’s negligence. But one set of circumstances was shown,—negligence of the defendant and conduct of the plaintiff’s intestate; thus plainly presenting only the issues of negligence and contributory negligence with respect to that one unvaried and unchanged set of circumstances. In such a situation, the charge of the trial judge in the respect above mentioned was erroneous. We have considered the subject in the case of Bortz v. Railroad Co. (decided herewith), 79 N. Y. Supp. 1046, and what is there said concerning it need not be repeated here.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the defendant to abide the event. All concur.

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PATTERSON, J.

In this case it appears that the plaintiff’s intestate, a very bright, intelligent child, seven years and eight months of age, who had been attending school for two years, on the 5th of September, 1901, attempted to cross East Broadway, in the city of New York, and while doing so he was run over by a horse car belonging to the defendant, and sustained injuries from which he died the next day. There was evidence of negligence of the driver of the car, and also evidence from which the jury might infer that there was contributory negligence. The court, in its charge, stated to the jury that it was for them to say whether the plaintiff might not have crossed the track of the defendant’s road in safety, by the exercise of such care as was reasonably to be expected of one of his age. Upon the subject of the degree of care required of an infant of that age, the learned trial judge properly instructed the jury, but also charged them that, even if they should find that the plaintiff’s intestate was guilty of contributory negligence, the question remained whether the defendant’s driver, by the exercise of reasonable care and prudence, might have avoided the consequences of the child’s negligence. That instruction was repeated, and was duly excepted to. There is nothing in the evidence to show any new intervening circumstance which would authorize the elimination' from the case of the consideration of the child’s negligence. But one set of circumstances was shown,—negligence of the defendant and conduct of the plaintiff’s intestate; thus plainly presenting only the issues of negligence and contributory negligence with respect to that one unvaried and unchanged set of circumstances. In such a situation, the charge of the trial judge in the respect above mentioned was erroneous. We have considered the subject in the case of Bortz v. Railroad Co. (decided herewith), 79 N. Y. Supp. 1046, and what is there said concerning it need not be repeated here.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the defendant to abide the event. All concur.

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Bluebook (online)

79 N.Y.S. 1104, 78 A.D. 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delkowsky-v-dry-dock-east-broadway-battery-railroad-nyappdiv-1903.

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