Stein v. Palisi

283 A.D. 1119

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1954
• Status: Published

Opinion

In an action to recover damages for personal injuries sustained by the infant plaintiff and for expenses of his father, defendants appeal from a judgment in favor of plaintiffs entered upon a jury verdict and from orders denying defendants’ motions to dismiss the complaint, for directed verdict, and to set aside the verdict. Judgment reversed on the law and the facts, with costs, and complaint dismissed, with costs. The infant plaintiff was nineteen months of age at the time of the accident and the evidence was entirely circumstantial. The proof disclosed merely that he was found on the border of a road, bleeding profusely and with his clothes torn, dirty and oil stained, very shortly after a taxi left the spot near where he was found. Ho other moving vehicle was seen in the vicinity. An examination by police authorities within a brief time thereafter disclosed no blood on the roadway and no evidence on the taxi of an impact. Assuming the jury inferred that the cab did in fact come into contact with the infant (which was denied by the cabdriver), it would have to infer from that inference that such contact occurred through the negligence of the defendants in order to find for the plaintiffs. Appeals from orders dismissed, without costs. In view of the decision on the appeal from the judgment, the appeals from the orders are academic, and no such orders are printed in the record. Nolan, P. J., Adel, Wenzel, Schmidt and Murphy, JJ., concur.