Vaglio v. Kahn

253 A.D. 824, 1 N.Y.S.2d 322, 1938 N.Y. App. Div. LEXIS 8777

Opinion

The infant plaintiff, aged eight years, was crossing the street in front of his home when the defendant ran him down with her automobile in the middle of the street, seriously injuring him. She did not see him until she struck him, and gave no warning. It was dark at the time, and only her cowl lights, if any, were on. There was nonsuit and a dismissal of the complaint at the close of the plaintiffs’ evidence. Judgment for defendant reversed on the law and a new trial granted, with costs to appellants to abide the event. The infant appellant made a prima facie case of negligence, aud the question of his contributory negligence was one of fact for the jury. (Hammer v. Bloomingdale Brothers, Inc., 215 App. Div. 308; 42 C. J. p. 1049 et seq., and cases cited; 5 Am. Jur. p. 608.) Hagarty, Carswell, Davis, Johnston and Taylor, JJ., concur.