Barth v. Borden's Condensed Milk Co.

This action was brought to recover damages for an injury received by a child five years and nine months old, residing with its parents, by being run over by a wagon in charge of one of the defendant’s drivers. The case came on for trial before a jury; and, at the dose of the testimony, on motion of the defendant’s counsel, the (rial judge dismissed the complaint. Hpon an appeal from a nonsuit the plaintiff is entitled to every fact that the jury could have found from the evidence adduced on his part and to all favorable inferences therefrom; and, if two inferences arise, one favorable and one unfavorable, only the favorable one can be considered. Benjamin v. Metropolitan St. R. Co., 84 N. Y. Supp. 458. The child was concededly non sui 'juris and the testimony given on the part of the plaintiff was to the effect that, on Saturday morning, May *48812, 1906, at about nine a. m., the child went upon the street in front of his parents’ residence with a penny given him hy his father with which to purchase some candy, and that he was instructed to look out for wagons and cars. The street in question is not in constant use by vehicles, and children frequently play upon the side walks. The boy left the sidewalk to go upon the street as the defendant’s wagon was approaching from twenty-five to forty feet distant and coming rapidly toward him. The driver of this wagon was speaking to the driver of another wagon near him and, it is reasonable to presume, was paying no attention to what might he in his course, as his head was turned “ sideways ” as testified to hy plaintiff’s witnesses. The wagon struck the child, causing some injuries. Under the facts and circumstances disclosed by the testimony, it was a question of fact for the jury to determine, and the dismissal of the complaint was error.

Gildebsleeve and Dayton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.