Lehman v. New York Railways Co.

This action was brought to recover damages for personal injuries resulting from the striking of the plaintiff by one of the defendant’s cars while plaintiff was crossing a public highway. The plaintiff testified as follows:

“I was looking at some candy, so I went past, and I didn’t see the car, and didn’t hear no gong; „ * * * then I fell down * * * and was picked up.”

A witness on behalf of plaintiff testified that he saw the car come along, and “it struck this little boy, and the boy fell down.”

There is entire absence of evidence of the exercise of any degree of care by the plaintiff. Though of tender years (eight years of age), the law required the plaintiff to use such reasonable care as a child of his age, intelligence, and experience would have used under like circumstances. Even if the child were entirely incapable of exercising care for himself, the obligation to use reasonable care rests upon his parents as his custodians. In the absence of any proof on this point, the complaint should have been dismissed.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.