Hyland v. Yonkers Railroad

1 N.Y.S. 363, 15 N.Y. St. Rep. 824, 48 Hun 617, 1888 N.Y. Misc. LEXIS 1340

• Court: New York Supreme Court
• Decided: May 14, 1888
• Status: Published

Opinion

Barnard, F. J.

The case shows that the plaintiff, a child of some two and one-half years of age, went into the public street, with two other children of" Mrs. Bowlin, a neighbor. The plaintiff was put down the front steps to play with the Bowlin children. The plaintiff got upon the street in front of the-defendant’s street car, in motion. The car had no conductor, and the driver tried to make change for a lady who wished to pay her fare. The horses were permitted to go on. After the driver bad made the change, he again turned his face towards the horses, and then he saw, for the first time, the child, and tried to stop the car, and failed because he had not time, to prevent her being" injured. The car did serious injury to the little girl. The negligence of the driver is clear. He should not drive horses along the streets of a city without looking out for persons in the street. If he fail to look, and an accident-happen in consequence, he is chargeable with negligence. Murphy v. Orr, 96 N. Y. 15. The child injured in this case was only a little older than the-plaintiff. In Barker v. Savage, 45 N. Y. 191, it was held that a driver of a vehicle in the streets of a city is bound to be vigilant to discover any one-exposed to danger, and to control his team so as to avoid danger. In this case it is plain that the jury could find that, had the driver looked, he would have seen the child. The necessity of making change did not excuse an-omission of this duty of watchfulness for persons exposed to injury. The judgment should be reversed, and a new trial granted; costs to abide event-