Doyle v. Foster

Appellate Division of the Supreme Court of New York

Doyle v. Foster

128 A.D. 279, 112 N.Y.S. 673, 1908 N.Y. App. Div. LEXIS 456

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

DecidedOctober 23, 1908

DocketNo. 1

StatusPublished

Cited by2 cases

This text of 128 A.D. 279 (Doyle v. Foster) 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

Doyle v. Foster, 128 A.D. 279, 112 N.Y.S. 673, 1908 N.Y. App. Div. LEXIS 456 (N.Y. Ct. App. 1908).

Pincite

Opinion

Ingraham, J.:

This action was tried with Doyle v. Foster, No. 2 (128 App. Div. 281), decided herewith, for the injuries sustained by the plaintiff in consequence of being run over by a truck belonging to the defendant [280]*280in the street. The injury resulted in the amputation of his left leg ■and there were other serious injuries.

The plaintiff, a boy of thirteen years of age, testified that' he was in Barrow street shortly after three o’clock on the 8th of February, 1906 ; that he was about three feet from the gutter in the roadway when the shaft of the defendant’s wagon struck him and knocked him down; that he was standing with his back' towards ■ the east looking towards the west when the wagon came up behind him, and had been standing in this position about three minutes before he was struck; that he did not hear the wagon coming, neither the driver nor anybody else spoke to him before he was struck; that when he was injured he was watching a “ cat game ” on Barrow street; that he was not playing, but just watching thé game; that he had seen the horse that hit him two or three minutes before; that at the time of the accident he was twelve years old. Upon this testimony the court dismissed the complaint.

I know of no rule which imputes contributory negligence as a matter of law to a person who stands three minutes in the roadway of a street. Whether or not the plaintiff is non sui juris is of no consequence. He was bound to exercise the care and caution of a reasonably prudent person of his age and mental development, and n this case, whether he was guilty of negligence was for the jury. As to the defendant’s negligence, that also was a question for the jury. The plaintiff was standing in the street in which, so far as appears, there were no other vehicles or obstruction. The truck ■belonging to the defendant drove up behind him and ran over him without warning; this was evidence of the negligence of the driver.

1 It follows that the judgment must be reversed and a new trial ■ordered, with costs to the appellant to abide the event.

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.

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Ingraham, J.:

This action was tried with Doyle v. Foster, No. 2 (128 App. Div. 281), decided herewith, for the injuries sustained by the plaintiff in consequence of being run over by a truck belonging to the defendant [280]*280in the street. The injury resulted in the amputation of his left leg ■and there were other serious injuries.

The plaintiff, a boy of thirteen years of age, testified that' he was in Barrow street shortly after three o’clock on the 8th of February, 1906 ; that he was about three feet from the gutter in the roadway when the shaft of the defendant’s wagon struck him and knocked him down; that he was standing with his back' towards ■ the east looking towards the west when the wagon came up behind him, and had been standing in this position about three minutes before he was struck; that he did not hear the wagon coming, neither the driver nor anybody else spoke to him before he was struck; that when he was injured he was watching a “ cat game ” on Barrow street; that he was not playing, but just watching thé game; that he had seen the horse that hit him two or three minutes before; that at the time of the accident he was twelve years old. Upon this testimony the court dismissed the complaint.

I know of no rule which imputes contributory negligence as a matter of law to a person who stands three minutes in the roadway of a street. Whether or not the plaintiff is non sui juris is of no consequence. He was bound to exercise the care and caution of a reasonably prudent person of his age and mental development, and n this case, whether he was guilty of negligence was for the jury. As to the defendant’s negligence, that also was a question for the jury. The plaintiff was standing in the street in which, so far as appears, there were no other vehicles or obstruction. The truck ■belonging to the defendant drove up behind him and ran over him without warning; this was evidence of the negligence of the driver.

1 It follows that the judgment must be reversed and a new trial ■ordered, with costs to the appellant to abide the event.

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.

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Bluebook (online)

128 A.D. 279, 112 N.Y.S. 673, 1908 N.Y. App. Div. LEXIS 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doyle-v-foster-nyappdiv-1908.

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