180 N.Y. 397, Perez v. Sandrowitz

Citation:180 N.Y. 397
Party Name:DAVID PEREZ, as Administrator of the Estate of MICHAEL PEREZ, Respondent, v. BERNARD SANDROWITZ, Appellant.
Case Date:February 03, 1905
Court:New York Court of Appeals
 
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Page 397

180 N.Y. 397

DAVID PEREZ, as Administrator of the Estate of MICHAEL PEREZ, Respondent,

v.

BERNARD SANDROWITZ, Appellant.

New York Court of Appeal

February 3, 1905

Argued January 25, 1905.

Page 398

COUNSEL

Eugene Lamb Richards, Jr., for appellant. The complaint should have been dismissed on the ground that the plaintiff failed to show that the deceased was free from contributory negligence. (McDonald v. M. S. Ry. Co., 80 A.D. 233; Dolfini v. E. R. R. Co., 178 N.Y. 1; Kappus v. M. S. Ry. Co., 82 A.D. 13; Weiss v. S. M. S. Ry. Co., 33 A.D. 221; Sullivan v. U. Ry. Co., 81 A.D. 599; Swartz v. N.Y. C. R. R. Co., 81 A.D. 402; O'Reilly v. B. H. Ry. Co., 82 A.D. 492.) Even assuming that the defendant's driver was negligent in not seeing the boy and stopping the wagon and avoiding the accident, the boy was equally negligent in not seeing and avoiding the approaching wagon. (Kauffman v. I. S. Ry. Co., 43 Misc. 634;

Page 399

Du Frane v. M. S. Ry. Co., 83 A.D. 298; Little v. T. A. Ry. Co., 83 A.D. 330.)

Henry W. Unger and Abraham Levy for respondent.

GRAY, J.

The plaintiff recovered damages against the defendant for causing the death of his intestate, who was his son, upon allegations to the effect that it was occasioned through the negligence of an employee. The judgment of the trial court in his favor was affirmed by the Appellate Division; but, as it does not appear from the order, or judgment, that the affirmance was unanimous, we must assume that it was not. Therefore, upon this appeal, we are at liberty to review the evidence and to determine whether it was sufficient to warrant the submission of the case to the jury. The defendant had moved for a dismissal of the complaint, at the close of the evidence, upon the ground that the deceased was guilty of negligence which contributed to the injury.

The accident, which caused the death, occurred on 77th street, in the city of New York, at a point somewhat to the east of the easterly crosswalk at First avenue and about the middle of a day in August. According to those of the plaintiff's witnesses who saw the accident, the defendant's wagon, drawn by two horses, was being driven eastwardly on East 77th street at a rapid rate. After crossing First avenue, the horses struck the boy, who was in the street; throwing him to the ground, in such manner that the wagon passed over his body. The boy was crossing...

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