Opinion
December 5, 1919.
Murray G. Jenkins of counsel [ William B. Shelton with him on the brief; William Dike Reed, attorney], for the appellant.
Hobart S. Bird, for the respondent.
Present — CLARKE, P.J., LAUGHLIN, SMITH, MERRELL and PHILBIN, JJ.
We are of opinion that the order granting a new trial should be reversed and the verdict reinstated. Upon the evidence of the plaintiff's principal witness, the plaintiff's intestate could well be found guilty of contributory negligence, in looking to the south, and failing to look to the north, from which direction the automobile was coming at a reasonable speed. After plaintiff's intestate had passed the car in front, he could by looking have seen this automobile coming from the north and have avoided the injury. There was nothing between him and the approaching car. It was his duty to look to the north, because he was passing the line of the south-bound traffic. Further, we are of opinion that plaintiff failed to show negligence on the part of the defendant's chauffeur. The street is narrow. There were automobiles standing upon the west side. A car driving towards the south must necessarily go very near to these automobiles, and the evidence was that the chauffeur was proceeding to the south within three feet of these standing automobiles. Plaintiff's intestate suddenly came from in front of the standing car, from which place he could not be seen by the chauffeur until he was within a very few feet of the path in which the automobile was properly driven. Whether walking or running, the plaintiff's intestate stepped into this pathway when the defendant's car was right upon him, so that the chauffeur had not time to avoid the accident. The blowing of the horn would have been too late, and, instead of taking time to blow the horn, the chauffeur at once put his hands upon the wheel and endeavored to go around the boy and his right mudguard struck the boy and he was thrown under the wheels. Without proof of improper speed it cannot be said in this sudden emergency that the chauffeur was guilty of negligence causing the death of the boy. Under these circumstances, both for the boy's contributory negligence, and for lack of proof of the defendant's negligence, if the plaintiff had recovered a verdict, such a verdict would have been set aside as against the weight of evidence. It follows, then, that the verdict of the jury, finding in behalf of the defendant, was based upon abundant evidence and should stand.
The order should be reversed, with costs, and the verdict reinstated and judgment ordered thereupon, with costs.
Order reversed, with costs, and verdict reinstated and judgment ordered to be entered thereupon, with costs.