
    Gustav Gelderman, as Administrator, etc., of Josiah W. Gelderman, Deceased, Respondent, v. Grove D. Curtis and Walter F. Blaisdell, Copartners in Business under the Firm Name and Style of Curtis & Blaisdell, Appellants.
    First Department,
    June 28, 1907.
    Negligence —- injury to child by wagon—insufficient proof;
    Evidence in an action to recover for the death of-the plaintiffs intestate, a child, through the alleged negligence of the driver Of the- defendant’s wagon, examined and held, to be insufficient to warrant a recovery, ."and to show on - the contrary that the-death Was caused by the negligence of the intestate and. without fault of the.defendant’s servant.'
    Ingraham, J., dissented, with opinion.'
    Appeal by the- defendants, Grove D. Curtis and another, copartners, étc., from a judgment of the Supreme Court in favor of, the plaintiff, entered- in- the office of the cleric of the county of New York on the 14th day of January, '1907, upon the verdict of a jury for $1,400, and also-from an order'entered in'said clerk’s office on the 14th. day of January, 1907, denying the defendants’ motion for h new-trial made upon the minutes. ■ . .
    
      Frank Verner Johnson, for the appellants.
    
      Frank M. Hardenbrook, for the respondent
   Houghton, J.:

The action is for the killing of plaintiff’s intestate' through the carelessness of one of ¡defendants’ drivers in running him down upon a public street. -

The testimony on behalf of the plaintiff, elicited from a boy eight years old .at the time of the accident, was that the witness and the deceased, who was about -nine years' of age, were playing with other boys in the roadway of-a. public street, and that while the deceased was stooping over,..with his back to the approaching vehicle, drawn by one horse and loaded with coal, the driver of' which was not looking because he was asleep or iií a drunken stupor, he was knocked down and the horse stepped on his head, crushing his gknll, from the- effects of which he almost immediately died.

Conceding that the deceased had a right to play in the roadway of the street, and that under the circumstances he was excused from looking fo.r a vehicle approaching from behind, and that the defendants’ driver was careless in managing his horse, we think the motion for a new trial should have been granted on the ground that the over whelming, weight of evidence shows that the accident happened in an entirely different manner from that claimed by the plaintiff.

The testimony of the defendants’ driver, sustained by corroborating circumstances, was that while driving along the street, having a load of a ton of coal, his horse presumably on a walk, the deceased, playing with other boys, suddenly ran swiftly from the sidewalk into the horse, striking the thill of the wagon, which threw hi in backward, his head striking on the pavement with great force, and that stopping almost immediately, and before the front wheels of the wagon had touched the boy, the driver got down from his wagon, picked up the boy, carried him into the vestibule of a school building at its janitor’s suggestion, and that an ambulance was immediately summoned, and on its arrival the boy was deads

The janitor testified that the boy lay on the pavement between the horse’s hind legs arid front wheel; the direction of the head he was unable to state.

The physician who made the post mortem examination stated that the back of the head of the boy was crushed in, the broken fragments -lacerating the brain, showing an injury such as might be inflicted by some blunt instrument or great force, and that there were no marks of violence on the face or other portions of his body. The undertaker testified to the one injury only, except that there was an abrasion of the cheek.

The testimony of these three witnesses, called on behalf, of the plaintiff, shows the extreme improbability of the boy’s skull having been fractured by the horse stepping on the back of his head. If the injury had been, inflicted in that manner there would have been some signs of it on the face. Pressure sufficient to crush the skull in the manner described would have pressed the face of the. boy against the pavement in such manner as to show greater indication of the fact than it did. Manifestly the abrasion of which the undertaker speaks was slight, else the coroner’s physician would have discovered it. Nor is it probable that a. horse on an ordinary walk, in lifting his foot to step; would have .inflicted -so severe an' injury as.that from which the boy. died. On the other hand;-a violent fall, stinking the back of the head squarely upon the pavement, might produce the precise injury which caused the death. ■ . ■

Without determining whether upon the facts claimed' by plaintiff the defendants’ servant was shown negligent and his, intestate free from, contributory negligence, we are of the opinion that thé weight of evidence was that the plaintiff’s intestate brought the injury upon himself without any fault on the part of the defendants’ .servant.

The judgment and order should be reversed and a hew trial granted, with costs to the appellantsdo abide the event.' •'

Olabkb and Lambeet, JJ., concurred'; Pattebsow, P. J., andIngbaham, J., dissented. . .

Ingraham, J. (dissenting):

1 dissent. ■ I think the question of the defendants’- negligence*and the deceased’s contributory negligence was for the jury, and that there was evidence to sustain the verdict. The nature of the injury 'was not such as could have been- caused, by the deceased, falling on the asphalt pavement. It appeared. that the skull was crushed in which is entirely consistent with the evidence on behalf of, the plaintiff that the injury was caused by the horse’s hoofs striking the boy on the skull: , It is quite inconsistent, it seems to me-, -with a' mere fall of the deceased on the asphalt pavement. A blow from the 'horse’s feet had the force necessary to crush the. skull and corroborates "the plaintiff’s theory of the accident.

■ ■ Judgment and order reversed, new trial ordered, costs to appellants to abide event.  