Napurana v. Young

• Decision Date: 04 March 1907
• Parties: NAPURANA v. YOUNG.
• Court: New Jersey Supreme Court

65 A. 1052

74 N.J.L. 627

NAPURANA

v. YOUNG.

Court of Errors and Appeals of New Jersey.

March 4, 1907.

(Syllabus by the Court.)

Error to Circuit Court, Essex County.

Action by Consilio Napurana against William Young. Judgment for defendant, and plaintiff brings error. Reversed.

Henry V. Osborne, for plaintiff in error. Elvin W. Crane, for defendant in error.

FORT, J. This is an action in tort by a little child, by her next friend, to recover for injuries resulting from being run down, on a cross-walk, by a team of horses driven by the servant of the defendant. The child was seven years old at the trial, and the accident was some 16 months prior thereto. The exact age of the child does not appear. It is evident that she was about six years old at the time of the accident. The trial judge rightly held that contributory negligence could not be imputed to her.

When plaintiff rested there was a nonsuit. The proof then was that the child was upon the cross-walk, crossing the street, following her mother, who had already crossed. The child was at the time of the accident about in the middle of the street. The servant of the defendant was driving a team of horses to a loaded wagon and was traveling, at the time of the accident, on a slow walk. With him on the wagon was a colored man. There is no proof that they were talking, or that the driver was not giving attention to his horses. The wagon did not go over the child, the horses only hit her. On this state of facts, the trial judge nonsuited, saying: "We must have something more, something to show want of care on the part of the driver, something beyond a mere inference founded on these naked facts, some positive testimony showing some act of inattention or want of care—evidence, for instance, that the driver was looking elsewhere, that he was not minding his business, that he was asleep or intoxicated, or what not. How can the court or the jury predicate a charge of negligence on the bare fact that a walking horse knocks a person down in the middle of the street?"

If this is a correct view of the law as applicable to this case, the nonsuit was right. But we think it was not. On the question of negligence in a driver of horses attached to a vehicle upon the public street, it is of little concern whether he be going fast or slow, except as speed may be an element of negligence. The question, in either event, is whether he was in the exercise of reasonable care and caution in approaching the crossing...