Neary v. Middlesex Transportation Co.

270 A.D. 912, 61 N.Y.S.2d 565, 1946 N.Y. App. Div. LEXIS 4608

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1946
• Status: Published

Opinion

Action by infant plaintiff to recover damages for personal injuries Buffered as a consequence of the collision of a truck of defendant Parisi with the rear end of a motor vehicle of defendant Middlesex Transportation Co., Inc. Also companion action by the infant’s mother for expenses and loss of services. Judgment for plaintiffs, entered on verdicts in their favor against both defendants, affirmed, with costs. The holdings in Zioilling v. Harrison (269 N. Y. 461) and Jennings v. Delaney (229 App. Div. 439, affd. 255 N. Y. 626) are distinguishable from the situation ■ herein, which did not concern a congested traffic area", and the infant plaintiff was not seated in a position on the vehicle of defendant Middlesex Transportation Co., Inc., of a character inherently dangerous as a matter of law. The question relating thereto was one of fact. (Morgan v. Krasne, 272 N. Y. 427.) Hagarty, Carswell and Nolan, JJ., concur; Lewis, P. J., and Aldrich, J., concur for affirmance of the judgment against defendant Parisi, but as to defendant Middlesex Transportation Co., Inc., they dissent and vote to reverse the judgment and to dismiss the complaint on the ground that the record is barren of proof sufficient to charge defendant Middlesex Transportation Co., Inc., with a violation of its duty to the infant plaintiff, as to whom defendant Middlesex would be liable only for wanton and reckless conduct resulting in his injury, and not for ordinary negligence.