Oelerich v. New York Condensed Milk Co.

6 N.Y.S. 127, 2 Silv. Sup. 563, 24 N.Y. St. Rep. 699, 53 Hun 633, 1889 N.Y. Misc. LEXIS 439

Opinion

Barnard, P. J.

The evidence fully sustains the verdict of the jury in this case. on a quick trot around a corner in a thickly populated portion of Brooklyn, and ran over a boy under six years of age. The wagon was so constructed that the driver could only see an object some 20 feet or more in front of the horses’ heads. The driver had been drinking intoxicating liquors. It was negligence to drive a wagon when danger could not be seen. It was especially dangerous and negligent to drive so fast when the driver could not see the ground within 20 feet of his horse; and the habit of strong drink, or a loss certain by a single instance of indulgence, must be imputed to the master under the settled law in respect to master and servant while the servant is doing the master’s business. The question of the contributory negligence of the child is one for the jury. This is the general rule, and especially is the rule where the tender age of a child is to be considered with reference to the degree of prudence and caution required of him under the circumstances. Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. Rep. 442. The judgment should therefore be affirmed, with costs.