Gloshinsky v. Bergen Milk Transp. Co.

• Decision Date: 29 November 1938
• Citation: 17 N.E.2d 766,279 N.Y. 54
• Parties: GLOSHINSKY et al. v. BERGEN MILK TRANSP. CO. et al.
• Court: New York Court of Appeals Court of Appeals

279 N.Y. 54

17 N.E.2d 766

GLOSHINSKY et al.

v.BERGEN MILK TRANSP. CO. et al.

Court of Appeals of New York.

Nov. 29, 1938.

Action by Josephine Gloshinsky, individually, and Lawrence Gloshinsky, an infant, by Josephine Gloshinsky, his guardian ad litem, against the Bergen Milk Transportation Company, Frank Meyer, and another for injuries sustained by the infant. From a judgment of the Appellate Division, 254 App.Div. 658, 4 N.Y.S.2d 188, affirming by a divided court the judgment of the Trial Term in favor of plaintiffs, the named defendants appeal.

Judgments reversed, and complaint dismissed.

CRANE, C. J., and HUBBS and LOUGHRAN, JJ., dissenting. Appeal from Supreme Court, Appellate Division, First department.

Joseph L. Roesch and William R. Meagher, both of New York City, for appellants.

Daniel F. Kelley, of New York City, for respondents.

RIPPEY, Judge.

One of the plaintiffs, an infant fifteen years of age, was injured at about half past four on the afternoon of May 23, 1934, when the tailboard of a trailer hitched to a truck and owned by the defendant Bergen Milk Transportation Company dropped on his head. The boy and his mother have brought an action to recover damages for injuries which he then sustained and they have recovered.

Defendant Meyer, the driver of the truck, had backed the truck with the trailer behind it into a narrow areaway, slightly wider than the vehicle, alongside a loading platform of a milk station operated by defendant Schalk for the purpose of unloading cases or cans of milk. The driver dismounted on the left side of the cab, went along the left side of the cab and trailer and around the rear to the right rear corner, pulled out a pin to release the chain attached to and holding in position the right end of the tailboard, then walked around the rear of the trailer to the left side, released the chain holding the left end of the tailboard, and it dropped into position so that the cans or cases could be unloaded onto the platform. While this was going on, the boy passed along the right side of the truck and trailer, between the truck and trailer and the loading platform, and was just passing around the right rear corner of the trailer as the tailboard fell.

The boy testified that while he was still out in the street, he looked up and saw the driver sitting in the cab of the truck after it had backed into and stopped within the inclosure but said that he did not see him afterwards. There was no evidence that the driver had any notice that the boy was entering the areaway, or passing around the side and the rear of the truck and trailer, or that he was near or in the vicinity of the tailboard when he permitted it to drop. There was no evidence from which the jury were authorized to infer that the driver had any reason to anticipate that any one would be in the place where the accident happened. The driver testified that he did not look around to see. Under the circumstances, he had no duty to make any such observation. There was no reason apparent in the evidence why he should have anticipated that someone would run into the areaway around the truck and trailer and under the tailboard while he was letting it down. The driver was bound to exercise only reasonable care. There was no evidence from which the jury might find that appellants violated any duty they owned to the boy, and consequently the finding of negligence on the part of the driver was without evidence to support it.

In the absence of evidence tending to show that the boy was not of sufficient age, capacity and experience or otherwise qualified or able to understand and appreciate the dangers surrounding him, he must be deemed sui juris. Tucker v. New York Cent. & H. R. R. R. Co., 124 N.Y. 308, 318,26 N.E. 916,21 Am.St.Rep. 670. The mere fact that the injured person is an infant does not require the submission of the question of his freedom from contributory negligence to the jury. Wendell v. New York Cent. & H. R. R. R. Co., 91 N.Y. 420. The standard of care required of an infant is sometimes lower than that which would be required of an adult under the same circumstances. An infant, however, is required in all cases to exercise reasonable care to avoid known dangers (Volosko v. Interurban Street Ry. Co., 190 N.Y. 206, 209,82 N.E. 1090, 15 L.R.A.,N.S., 1117) and all unknown dangers which ordinary prudence requires him to anticipate, the care being measured by that which an ordinarily prudent person of his age, capacity and experience would have exercised under similar circumstances. Reynolds v. New York Cent. & H. R. R. R. Co., 58 N.Y. 248, 252;Camardo v. New York State Railways, 247 N.Y. 111, 159 N.E. 879. The burden of establishing freedom from contributory negligence rested upon the plaintiffs. Camardo v. New York State Railways, supra. While the question of...