Opinion
November, 1892.
Henry Schmitt and Charles H. Lellman, Jr., for plaintiff (respondent).
Robert Sewall, for defendant (appellant).
The case was tried upon the postulate that the child was non sui juris. Nevertheless, the learned trial judge charged that "a recovery can be had if the negligence of the defendant was the sole cause of the injury, and no negligence of the child contributed to it;" and more explicitly still, that "if the jury find that the deceased's own negligence contributed to her death, they must find for the defendant." Upon this instruction, the verdict for the plaintiff necessarily negatives the fact of the child's contributory negligence; and hence the parent's negligence, if any, was ineffectual to defeat a recovery. McGarry v. Loomis, 63 N.Y. 104.
Supposing, however, the imputed negligence of the parent in the case, it was not negligence per se to suffer the child to play in the street ( Kunz v. City of Troy, 104 N.Y. 344; Birkett v. Ice Co., 110 id. 504); and the verdict is conclusive of the question in favor of the plaintiff.
The inquiry then is, whether the evidence suffices to authorize the inference of defendant's negligence and the child's non-negligence.
Evidence that the car was running as fast as twelve miles an hour — twice the rate allowed by law — that the driver saw the child thirty-five feet away, and neither slackened speed nor applied brake, that if he had applied the brake he would have stopped the car before striking the child, is surely plentiful proof of defendant's negligence.
As to the child's non-negligence, the case is equally clear. She had the right to pass over the street elsewhere than at a crossing ( Moebus v. Herrman, 108 N.Y. 349); while so passing she heard the cry of the driver, and "started to run, and as she started to run the car came so fast that the horse and car struck her a second and a half or two seconds from the time the driver hollered." Upon this statement of the occurrence, the jury were well warranted in exonerating the child from the imputation of negligence.
But the mere negligence of a plaintiff is not enough to defeat his recovery; his negligence must be a contributing cause of the injury. Assuming, then, the negligence of the child, it is still apparent that the negligence of the defendant was the sole cause of the injury; for, after discovering the peril of the child, the driver had ample time and opportunity, by ordinary care, to avert the impending catastrophe. Hence, it was the lack of that care on his part alone which occasioned the casualty, the negligence of the child, if any, was not a contributing agency. Grand Trunk R. Co. v. Ives, 144 U.S. 409; 1 Sher. Redf. Neg. §§ 99-100, notes. The evidence was ample to authorize the verdict.
Appellant contends that though the verdict be valid the damages are excessive; but the clear weight of authority is to the contrary of the proposition. Birkett v. Knick. Ice Co., 110 N.Y. 504; Ihl v. R.R. Co., 47 id. 317; O'Mara v. R.R. Co., 38 id. 445; Oldfield v. R.R. Co., 14 id. 310; Bierbauer v. R.R. Co., 15 Hun, 559; 77 N.Y. 588; Houghkirk v. D. H.C. Co., 92 id. 219; (reversal on another point).
Appellant imputes error to the charge and refusal to charge; but the point is not available upon an "exception to the granting of the requests on the other side and the refusal to charge those of mine that were not charged." Read v. Nichols, 118 N.Y. 224; Newall v. Bartlett, 114 id. 399; Smedis v Railroad Co., 88 id. 14.
The exceptions to evidence taken below are not pressed upon the appeal.
On review of the record we perceive no error available to appellant; and upon the evidence we are entirely satisfied with verdict. Judgment and order affirmed, with costs.
BOOKSTAVER, Ch. J., and BISCHOFF, J., concur.
Judgment and order affirmed.