
    Alice K. Cherbuliez, as Committee of the Person and Property of Adele Cherbuliez, an Incompetent Person, Plaintiff, v. Robert E. Parsons, Defendant.
    (Supreme Court, Queens Special Term,
    June, 1908.)
    Negligence: Contributory negligence — Persons in street — Person struck by horse under saddle whose approach from behind was not heard: Actions — Evidence — Weight and sufficiency — Contributory negligence — Sufficiency of evidence where plaintiff is incompetent.
    In an action by the committee of an incompetent person to recover damages for personal injuries to the incompetent resulting in her incompetency, where it appears that the incompetent when walking northerly along a macadam pavement customarily used by pedestrians in the center of a public street without sidewalks, to reach the sidewalk of an intersecting street started to cross, diagonally, the easterly half of the street in which she was walking when a horse, also going northerly, galloping in the soft dirt of the street, was with its rider one or two hundred feet distant from her in a southerly direction; that the horse gradually approached her as she proceeded until when she was within eight or ten feet of the sidewalk the feet of the horse which was then about that distance from her struck a cobblestone pavement when she immediately quickened her steps, the horse turned in nearer to the curb to which she was hastening and struck her before she reached it; that the horse continued galloping all the while and a noise caused by boys beating on barrels might have prevented her from hearing the horse’s hoofs until they struck the cobblestones, the question of her contributory negligence is a question for the jury.
    The rules established in considering and disposing of the question of contributory negligence when the party injured is dead are applicable to a case where the injured party is insane and consequently unable to testify; and her failure for that reason to testify to the use of her faculties when she started to cross to the sidewalk, or during her progress, will not prevent a recovery where the facts and surrounding circumstances justify an allowable deduction or inference that the plaintiff exercised care.
    Action for damages for personal injuries. Motion to set aside a verdict.
    
      Davies, Stone & Auerbach (Herbert Barry and Henry B. Short, of counsel), for plaintiff.
    Parsons & Milne (Stephen O. Lockwood, of counsel), for defendant.
   Stapleton, J.

The plaintiff, as committee of the person and property of Adele Cherbuliez, an incompetent person, sued to recover damages for personal injuries alleged to have been sustained by her incompetent through the sole negligence of the defendant. The jury rendered a verdict for $12,000, and the defendant moves to set it aside. The nature of the injuries, their direct consequences, including insanity, and the past and future loss of earnings justify the amount of the verdict. While all authorized grounds for the motion were assigned, that the verdict in general was contrary to law and evidence is argued; and the failure of the plaintiff to establish the negligence of the defendant and the freedom from negligence on the part of her incompetent is specifically urged.

On election day, November 7, 1907, the plaintiff’s incompetent, a bright, active, intelligent woman, about forty years of age, was proceeding northerly along Parsons avenue, a public street, in the borough of Queens. Parsons avenue is forty-three feet in width, was constructed of macadam pavement in the center, about twenty-five feet in width, and soft dirt roads of equal width to either side. There were no sidewalks from Chestnut street to Mitchell avenue, streets which intersected P'arsons avenue and formed a block thereof. Pedestrians at this place customarily used the macadam. At the intersection of Mitchell avenue (a thirty-five foot street), at the southerly line thereof, the plaintiff’s incompetent left the center of the macadam and proceeded in a diagonal direction toward the northeasterly corner of Parsons and Mitchell avenues, where a sidewalk or path along Parsons avenue began running northerly. At the time the plaintiff’s.incompetent made that turn, the defendant, an equestrian, was on the soft dirt road on the east side of Parsons avenue, a half or a quarter of the distance of the 444-feet block between Chestnut street and Mitchell avenue, coming northerly, his horse galloping, the gallop continuing until the collision. The day was clear, the view of each of the actors was unobstructed, some boys were making noise beating barrels they were gathering for a bonfire. When the plaintiff’s incompetent reached a point about eight or ten feet from the sidewalk, at or near the northeast corner of Parsons avenue and Mitchell avenue, she quickened her pace. There was a cobblestone pavement placed in the dirt road, for part of its width, the southerly beginning of which was about eight or ten feet from the line along which the plaintiff’s incompetent was proceeding just before the collision. The horse’s feet struck the cobblestones eight or ten feet away from where plaintiff’s incompetent was, at the time, immediately preceding the quickened movement of plaintiff’s incompetent.

The defendant, his horse galloping, turned to the right and east and in close to the curb; the horse’s knees struck the plaintiff’s incompetent, and she was thrown to the ground and injured.

This version of the occurrence is satisfactorily sustained by evidence. Its narration clearly suggests that, upon the proposition of defendant’s negligence, it was plainly a question for the jury. Barker v. Savage, 45 N. Y. 191, 194; Moebus v. Herrmann,'108 id. 349, 352; Birkett v. Knickerbocker Ice Co., 110 id. 504, 507; McClain v. Brooklyn City R. R. Co., 116 id. 459; Murphy v. Weidmann Cooperage Co., 1 App. Div. 283; Head v. Roscoe Lumber Co., 54 id. 621, 622; Weil v. Wright, 29 N. Y. St. Repr. 763; Reens v. Mail & Express Publishing Co., 10 Misc. Rep. 122; affd., 150 N. Y. 582.

Defendant contends there was no proof of plaintiff’s incompetent’s freedom from contributory negligence; no proof that she used her faculties before or at the time she took a line of movement which, if she continued, would cross the line of defendant’s progress, or at any time in relation to this transaction.

Plaintiff’s incompetent was judicially committed and actually confined as an insane person at the time of the trial. No authority has been cited, no reason has been suggested and none occurs to me why the rules established in considering and disposing of this question, where the party injured is dead and a legal representative brings a statutory action, should not completely apply. The fact that no one could testify that he saw the incompetent look does not necessarily show she did not do so, if the facts and surrounding circumstances justify an allowable deduction or inference that she exercised care. Schafer v. Mayor, 154 N. Y. 466; Woodworth v. N. Y. C. & H. R R R Go., 55 App. Div. 23; a fid., 170 N. Y. 589.

If she looked at the time she turned and proceeded in a diagonal direction and saw the horseman, from whom she had a right to expect ordinary care, one-half or one quarter the distance of a block 444 feet in length, i. e., 222, or 111 feet behind her, to her right, as she was going northerly, she was not negligent as a matter of law in moving toward the sidewalk. If she thereafter went on her way, with her eyes straight ahead, it cannot be said, as a matter of law, she was thereby negligent. Rush v. Bauland Compány, 82 App. Div. 506, 508. It was not fatal to plaintiff’s case, on the branch of contributory negligence, to fail to prove that the incompetent looked where the approaching rider was at such a distance, when she turned to cross, that, had she- in fact looked, she would be warranted in crossing. Monck v. Brooklyn Heights R R Go., 97 App. Div. 447; affd., 182 N. Y. 567.

The incompetent’s failure to hear the approach of the horse galloping noiselessly on soft dirt, while boys in the immediate vicinity were beating barrels, presented a circumstance bearing on conduct for a jury’s consideration.

The startled and frightened act of quickened movement on the part of the incompetent, in her effort to escape collision with a galloping horse in proximity of about ten feet, as the surface on which he traveled changed from soft dirt to cobblestone with the consequent variation in noise, whereby she perhaps touched peril more closely, does not render her remediless, if the danger was one she might not reasonably anticipate if the horseman was careful. Barrett v. Smith, 128 2ST. Y. 607; Coulter v. American Merchants’ Union Ex. Co., 56 id. 585.

Contributory negligence on the part of plaintiff’s incompetent does not appear “ so clfearly that no construction of the evidence or inference drawn from the facts will warrant a contrary conclusion.” Stackus v. N. Y. C. & H. E. E. E. Co., 79 R Y. 464, 469; Smith v. N Y. C. & H. R. R. R. Co., 177 id. 224.

Motion to set aside the verdict denied.

Motion denied.  