Mosher v. Lamora

245 A.D. 903

Opinion

Appeal from a judgment of nonsuit on the merits at the end of plaintiff’s case. Children were playing on the westerly sidewalk near a four-corner intersection. The truck was going south. The evidence shows the little girl who was killed in the accident did not leave the sidewalk but the truck was so close to the curb that she was caught and partly thrown under the truck and killed. Her feet were still on the curb. Plaintiff was entitled to the most favorable view of the evidenee and decedent’s negligence was a question for the jury and the burden was upon the defendant to show that decedent was negligent. Judgment is reversed upon the law and a new trial granted, with costs to the appellant to abide the event. Present — Hill, P. J., Rhodes, MeNamee, Crapser and Bliss, JJ.