Simkoff v. Lehigh Valley R. Co.

• Decision Date: 17 December 1907
• Citation: 83 N.E. 15,190 N.Y. 256
• Parties: SIMKOFF v. LEHIGH VALLEY R. CO.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 256

83 N.E. 15

SIMKOFF

v.LEHIGH VALLEY R. CO.

Court of Appeals of New York.

Dec. 17, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Leonard Simkoff, an infant, by guardian, against the Lehigh Valley Railroad Company. Judgment for plaintiff (103 N. Y. Supp. 1142), and defendant appeals. Affirmed.

Lyman M. Bass, for appellant.

George H. Kennedy, for respondent.

GRAY, J.

The plaintiff has recovered a verdict in damages for personal injuries, which, he alleged, were occasioned through the negligence of the defendant, and the judgment has been affirmed by the Appellate Division. The plaintiff was, at the time of his accident, an infant of over seven years of age. While crossing the tracks of the defendant, in the city of Buffalo, he was run down by a locomotive engine, and received the injuries of which he complains. According to the evidence on either side, the engine approached the street crossing at a rate of speed not to exceed three to four miles an hour. The plaintiff's claim was that his foot was caught in a gap in the planking of the sidewalk, upon which he was passing, where it met the rail of the track, and that, while helpless therefrom, the engineer, though he could see him, neglected to stop his engine. The case presented, mainly, a question of fact upon the evidence with respect to the way in which the accident occurred, and we might affirm the judgment, without any expression of opinion, were it not for the ruling of the trial court upon a certain request made by the defendant. The plaintiff himself was not examined. His father testified that he had been ‘a bright, intelligent boy,’ who had, for two summers, attended school, and who was accustomed to pass over the same way every few days for the past few years.

The trial judge, in his charge, left it to the jury to say whether the plaintiff was of ‘sufficient mental capacity by reason of his age to appreciate danger and exercise caution.’ Upon the conclusion of the main charge, the court was requested by the defendant, further, to charge ‘that the burden of proving that the plaintiff was unable to properly care for himself at the time of the accident is upon the plaintiff.’The judge refused to charge as requested, holding, upon the authority of Costello v. Third Ave. Railroad Co., 161 N. Y. 317, 55 N. E. 897, that the burden was upon the defendant of establishing that an infant of that age was sui juris. In so ruling, I think the learned trial judge erred as to the general legal proposition. The opinion of this court in the Costello Case did not pass upon the question of the burden of proof in such cases. The rule has been more properly stated by this court in the opinion in the case of McGrell v. Buffalo Office Bldg. Co., 153 N. Y. 265, 47 N. E. 305. I am not aware that we have decided to the contrary. In that case Judge Martin, speaking for the court, said that, if the infant (in that case a girl of between nine and ten years of age) was ‘unable to properly care for herself under the circumstances, the burden of establishing that fact was upon the plaintiff.’ In Stone v. Dry Dock, E. B. & B. R. R. Co., 115 N. Y. 104, 21 N. E. 712, where the infant was seven years of age, the same...