Perez v. Sandrowitz

Decision Date03 February 1905
Citation180 N.Y. 397,73 N.E. 228
PartiesPEREZ v. SANDROWITZ.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by David Perez, as administrator of Michael Perez, against Bernard Sandrowitz. From a judgment of the Appellate Division (85 N. Y. Supp. 1144,90 App. Div. 606) affirming a judgment for plaintiff, defendant appeals. Reversed.

Eugene Lamb Richards, Jr., for appellant.

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 employé. 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 Seventy-Seventh street, in the city of New York, at a point somewhat to the east of the easterly cross-walk 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 Seventy-Seventh 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 the street at a point some 20 feet or more from First avenue, and was proceeding in a slanting direction towards the avenue. It was raining hard, and he was wearing a rubber coat or cover to protect him from the rain. The plaintiff testified of him that he was about 13 years of age, and that he was a bright and healthy boy. There is no claim that he was incapable of caring for himself. There was no other vehicle and no obstruction in the street at the time which could have prevented him from seeing the approaching wagon. What he was doing-whether playing or accomplishing some more serious purpose-is not certain from the evidence, which is, also, conflicting as to whether the rubber coat or blanket was over his shoulders or over his head and eyes. According to the driver of the wagon, he was driving at a moderate gait, and the deceased had come suddenly from the sidewalk upon the street, and walked into the horses.

It may be conceded that upon the evidence the question of the negligence of the defendant's driver was one of fact which a jury alone could...

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4 cases
  • Knapp v. Barrett
    • United States
    • New York Court of Appeals Court of Appeals
    • 16 Noviembre 1915
    ...a matter of law. Barker v. Savage, supra;Peterson v. Ballantine & Sons, 205 N.Y. 29, 98 N.E. 202, 39 L.R.A. (N.S.) 1147; Perez v. Sandrowitz, 180 N.Y. 397, 73 N.E. 228;McClain v. Brooklyn City R.R. Co., 116 N.Y. 459, 470, 22 N.E. 1062;Reed v. Met. St. Ry. Co., 180 N.Y. 315, 73 N.E. 41;Volos......
  • Home Ins. Co. v. Cont'l Ins. Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • 3 Febrero 1905
  • Peteroson v. P. Ballantine & Sons
    • United States
    • New York Court of Appeals Court of Appeals
    • 19 Marzo 1912
    ...up overcoat and the turned down earcaps. This case, in its material facts, is not to be distinguished from that of Perez v. Sandrowitz, 180 N. Y. 397, 73 N. E. 228, where we reversed a judgment recovered by the plaintiff, and the following quotation from the opinion in the latter case is ap......
  • People v. Raffo
    • United States
    • New York Court of Appeals Court of Appeals
    • 21 Febrero 1905

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