Moebus v. Hermann

• Citation: 108 N.Y. 349,15 N.E. 415
• Parties: MOEBUS v. HERMANN.
• Decision Date: 10 February 1888
• Court: New York Court of Appeals

108 N.Y. 349

15 N.E. 415

MOEBUS

v.HERMANN.¹

Court of Appeals of New York.

February 10, 1888.

Appeal from general term, supreme court, Second department.

Action by Kate V. Moebus against Henry Herrmann for damages for negligent running over of plaintiff's child by defendant's driver. Judgment for plaintiff, and defendant appeals.

Morris & Pearsall, for appellant.

Carpenter & Roderick, (B. F. Tracy, of counsel,) for respondents.

DANFORTH, J.

The jury have found that the child was not careless, and that the defendant's driver was negligent. If there is evidence to support these findings, the only circumstance which distinguishes this case from Murphy v. Orr, 96 N. Y. 16, is that the child whose conduct is now in question was not on the cross-walk. A person on foot has, however, a right to cross the street where he pleases, and the inquiry is the same,-whether, under the circumstances in any given case, he does so with due caution. So with the driver. He was bound to be watchful at all points, elsewhere as well as at the cross-walk; and, had he been so, the jury might well have said, from the evidence, he would have seen the child in season to have prevented the collision. He was sitting on a high seat, the view was unobstructed, and from it he could see ‘all over the street;’ but he testifies that he did not see the child ‘until the shaft knocked him down.’ It is probable he did not see him at all, for the evidence from other witnesses is that he drove on, not checking his horse, not heeding the cries of the by-standers, until, after going 75 feet or thereabouts, he was forcibly stopped by a person who had seen the occurrence. It also appears that during the intervening time the horse was moving at a slow trot, the driver having the reins in his left hand, while with his head turned to the right, i. e., away from the child, he was looking backward, and conversing with a fellow-servant, who, like himself, was driving a similar wagon belonging to the defendant. The grade was ascending, and it is in evidence that the wagon could have been stopped before going the length of the horse, and the child saved before the wheels reached him. The driver either saw the child, and recklessly drove over him, or failed to see him because of inattention. His own statement to one who said, ‘For God's sake, how did you come to run over the child?’ was, ‘I could not help it because I could not see him,’ permits the latter, as the more charitable, inference, but he was none the less the cause of the accident. The child was less than seven years old, and therefore had not reached an age at which infants are generally supposed to be of full discretion or capable of crime, of which laches and neglect are but degrees. Pen. Code, §§ 18, 718, subsec. 1. But the case was given to the jury as one in which he was bound to exercise care in attempting to cross, and to look and see if he could do so safely; the court saying: ‘The rule of vigilance applies to children as well as to adults;’ but ‘that a child of immature years, while bound to exercise care, is held to no higher degree of forethought than you could expect of its age;’ and again: ‘If you say the child did what an ordinarily careful child would have done, then it is not negligence.’ And, at the request of defendant's counsel, he charged that ‘it was as much the duty of the boy to look out for vehicles while crossing the street as it was for the...