Boronkay v. Robinson & Carpenter

• Decision Date: 14 February 1928
• Citation: 247 N.Y. 365,160 N.E. 400
• Parties: BORONKAY v. ROBINSON & CARPENTER.
• Court: New York Court of Appeals Court of Appeals

247 N.Y. 365

160 N.E. 400

BORONKAY

v.ROBINSON & CARPENTER.

Court of Appeals of New York.

Feb. 14, 1928.

Suit by Mary Boronkay, as administratrix of the goods, chattels, and credits of Nicholas Boronkay, deceased, against Robinson & Carpenter. Judgment for plaintiff entered in the Trial Term on verdict of a jury was affirmed by the Appellate Division (223 N. Y. S. 853, 221 App. Div. 813), and defendant appeals.

Judgment reversed, and new trial granted.

See, also, 224 N. Y. S. 761, 221 App. Div. 820.

Appeal from Supreme Court, Appellate Division, Third Department.

Roland Ford, of Albany, and Oscar J. Brown, of Syracuse, for appellant.

Harold E. Simpson, of Ithaca, for respondent.

LEHMAN, J.

The defendant delivered coal at the home of the plaintiff in the city of Ithaca. The defendant's coal truck stopped on the left-hand side of the curb. The driver of the truck, with his helper, carried the coal in bags to a coal bin in the rear of the house. The plaintiff's son, a boy about four years of age, followed the men back and forth as they carried the bags of coal. When the coal had been delivered, the driver started the truck. In some manner the plaintiff's son was thrown under the wheels of the truck and killed. There is evidence that the boy was standing at the curb, and was caught by a hook which was hanging from the truck from a chain upon the side nearest the curb. The plaintiff has recovered a judgment for the damages caused by the child's death.

In spite of denial by the defendant's witnesses that the accident occurred in the manner claimed by the plaintiff, the jury might have found that the defendant's driver was negligent in permitting a chain and hook to hang from the truck in a position in which it might injure others using the street. Perhaps the jury might have found that the driver was negligent in starting the truck without noting where the boy was standing. The complaint predicates liability also upon the defendant's negligence in stopping the truck with its left side to the curb, in violation of the provisions of subdivision 6, section 15 of the General Highway Traffic Law (Consol. Laws, c. 70). The trial judge charged the jury that it might bring in a verdict in favor of the plaintiff if it found that the driver violated the provisions of the Highway Traffic Law or similar provisions of the ordinances of the city of Ithaca, and that such violation caused the accident.

Statutes and ordinances which require vehicles to proceed along the right-hand side of the roadway and prohibit vehicles from stopping with their left sides towards the curb of the roadway tend to facilitate the safe passage of persons or vehicles using the roadway. Such statutes and ordinances are intended to create order, where disorder might be dangerous. The law prescribes safeguards to protect those who might come within the zone where danger is apprehended....