Kelly v. Loft

Judgment affirmed, with costs.

There is nothing herein to indicate that the child plaintiff did nor did not do anything, excepting that one witness said she stepped down from the sidewalk in front of the candy cart which the defendant’s boy was trundling along the street. The girl herself was not produced, nor was any reason suggested for her not forthcoming. This is not enough to bring the case within the prevailing opinion in Sullivan v. Union Railway Company, 81 App. Div. 596, 81 N. Y. Supp. 449, to the effect that, where there is nothing in two conflicting versions of an accident to show that the injured person observed whether or not there was a vehicle in the street, it is still for the jury to say, from all the circumstances, whether the conduct of the child were such as to-make it chargeable with contributory negligence. Moreover, two physicians, one for each side, say they discovered no evidence of any injury. The judgment should be reversed.