Weaver v. Bullis

New York Supreme Court

Weaver v. Bullis

14 N.Y.S. 338, 38 N.Y. St. Rep. 989, 60 Hun 579, 1891 N.Y. Misc. LEXIS 1980

DecidedMay 11, 1891

StatusPublished

This text of 14 N.Y.S. 338 (Weaver v. Bullis) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Weaver v. Bullis, 14 N.Y.S. 338, 38 N.Y. St. Rep. 989, 60 Hun 579, 1891 N.Y. Misc. LEXIS 1980 (N.Y. Super. Ct. 1891).

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Opinion

Dykman.

This is an action for the recovery of damages for injuries sustained by the plaintiff, a boy about nine years of age, by coming in contact with a mowing-machine belonging to the defendant, and which he was using at the time of the accident. The boy and the defendant were the only persons who witnessed the occurrence, and they differ so radically in their statements that their testimony is entirely irreconcilable. The boy says the defendant requested him to bring him a whip, and that he did so, and that when he handed him the whip he was seated upon the machine, which was in motion, and the knives cut off one of his feet, and injured the other. The defendant says, on the contrary, he had stopped Ms team, dismounted from the machine, and was some distance behind it, when he heard the boy make a noise, and looked up and saw him down with his foot severed from his leg. Then there was testimony respecting the admissions of the boy that the defendant was not upon the machine, which was disputed by the boy, and there was considerable testimony introduced on both sides from which inferences might be drawn in favor of the theories of each party. The trial was before a judge without a jury, and he has found that the defendant so carelessly managed a mowing-machine that by his neglect and carelessness the plaintiff’s leg was cut pif below the knee; that the boy was as careful as could be expected of a boy of 10 years of age, and that he did not by lack of prudence occasion the accident, in whole or in part. As a conclusion of law, the finding was that the plaintiff was entitled to recover a judgment against the defendant for the sum of $1,500. From the judgment entered upon that decision, and the order denying a motion for a new trial, the defendant has appealed to this court. If the facts found by the judge are justified by the testimony, then his conclusion of law is sustained, and the judgment must be sustained. Injury cannot be carelessly inflicted, even upon a trespasser, and under any circumstances the defendant was under obligation to observe care and prudence towards the child, and the finding of his failure to do so has some support in the testimony, and is not against the weight of the evidence. The finding of the judge stands in the place of a verdict of a jury, and must receive the same consideration, and we would not feel justified in setting aside a verdict where the testimony is so contradictory as we find it in this case. The rule respecting the degree or care required of a child of tender years, as laid down in Honegsberger v. Railroad Co., *40 N. Y. 574, and insisted [339]*339upon by the appellant, has been repudiated by the court of appeals in the case of Thurber v. Railroad Co., 60 N. Y. 326. We discover no ground upon which an appellate tribunal can interfere for the relief of the defendant, and the judgment and order should be affirmed, with costs.

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Dykman.

This is an action for the recovery of damages for injuries sustained by the plaintiff, a boy about nine years of age, by coming in contact with a mowing-machine belonging to the defendant, and which he was using at the time of the accident. The boy and the defendant were the only persons who witnessed the occurrence, and they differ so radically in their statements that their testimony is entirely irreconcilable. The boy says the defendant requested him to bring him a whip, and that he did so, and that when he handed him the whip he was seated upon the machine, which was in motion, and the knives cut off one of his feet, and injured the other. The defendant says, on the contrary, he had stopped Ms team, dismounted from the machine, and was some distance behind it, when he heard the boy make a noise, and looked up and saw him down with his foot severed from his leg. Then there was testimony respecting the admissions of the boy that the defendant was not upon the machine, which was disputed by the boy, and there was considerable testimony introduced on both sides from which inferences might be drawn in favor of the theories of each party. The trial was before a judge without a jury, and he has found that the defendant so carelessly managed a mowing-machine that by his neglect and carelessness the plaintiff’s leg was cut pif below the knee; that the boy was as careful as could be expected of a boy of 10 years of age, and that he did not by lack of prudence occasion the accident, in whole or in part. As a conclusion of law, the finding was that the plaintiff was entitled to recover a judgment against the defendant for the sum of $1,500. From the judgment entered upon that decision, and the order denying a motion for a new trial, the defendant has appealed to this court. If the facts found by the judge are justified by the testimony, then his conclusion of law is sustained, and the judgment must be sustained. Injury cannot be carelessly inflicted, even upon a trespasser, and under any circumstances the defendant was under obligation to observe care and prudence towards the child, and the finding of his failure to do so has some support in the testimony, and is not against the weight of the evidence. The finding of the judge stands in the place of a verdict of a jury, and must receive the same consideration, and we would not feel justified in setting aside a verdict where the testimony is so contradictory as we find it in this case. The rule respecting the degree or care required of a child of tender years, as laid down in Honegsberger v. Railroad Co., *40 N. Y. 574, and insisted [339]*339upon by the appellant, has been repudiated by the court of appeals in the case of Thurber v. Railroad Co., 60 N. Y. 326. We discover no ground upon which an appellate tribunal can interfere for the relief of the defendant, and the judgment and order should be affirmed, with costs.

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Bluebook (online)

14 N.Y.S. 338, 38 N.Y. St. Rep. 989, 60 Hun 579, 1891 N.Y. Misc. LEXIS 1980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-bullis-nysupct-1891.

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