Donnelly v. Silversmith

260 A.D. 934, 23 N.Y.S.2d 247, 1940 N.Y. App. Div. LEXIS 5530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1940
• Status: Published

Opinion

In an action brought by the infant plaintiff to recover damages for injuries sustained by him as a result of the negligence of the defendants in the operation of an automobile and by the father for medical expenses and loss of services, judgment for the defendants, dismissing the complaint at the end of the plaintiffs’ case, reversed on the law and a new trial granted, with costs to appellants to abide the event. In view of the reversal of the judgment, the appeal from the order granting plaintiffs’ motion for reargument of the motion to dismiss the complaint and for a new trial and upon such reargument adhering to the original decision, is dismissed, without costs. Upon the plaintiffs’ proof, our opinion is that a prima facie case was established. The jury might have found that the infant plaintiff, who was non sui juris as a matter of law (Meyer v. Inguaggiato, 258 App. Div. 331), received his injuries as the result of the negligence of the defendant Silversmith in the operation of defendants’ automobile, in that he started the car from a stationary position at a point fifteen feet behind an ice delivery truck, which truck also was stopped and on the step of which the infant plaintiff had been playing, while the infant plaintiff, having been warned from the truck by its driver, was traversing the space in the street between the ice truck and the curb. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.