
    Charles Cordes, App’lt, v. The Third Avenue Railroad Company, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed January 7, 1889.)
    
    1. Negligence—Street railroads.
    In an action for damages for running over plaintiff’s child, there was no evidence tending to show that at any point of time the child was at a place where the driver could have seen him: Beld, that the court properly refused to submit the evidence of negligence to the jury,
    
      '2. Same.
    Until the contrary is shown, a driver is to be assumed to have done his duty.
    Appeal by plaintiff from judgment dismissing the complaint.
    
      George W. Miller, for app’lt; William N. Cohen, for resp’t.
   Sedgwick, Ch. J.

The action was for damages for the loss of the services of the plaintiff’s child, caused by the negligence of defendant’s servants, in driving a car of .defendant’s so that the child was knocked down by the horses and seriously hurt.

In my judgment, there were no facts in the case which would have justified the judge in submitting to the jury the issue of negligence. The negligence charged against the driver of the car was in not stopping the horses before they ran over the child. There was, however, no fact which tended to show that at any point of time the child was at a place where the driver could have seen him and then have managed the horses so that the child would not have been knocked down by them. It was consistent with the testimony that the child came into contact with the horses at the side and so suddenly that the consequences were unavoidable.

There was no presumption of negligence. Until the contrary is shown, it is to be assumed that the driver did his duty in looking ahead over his pathway, and would have avoided whatever it was his duty to avoid. To show that he neglected this duty, it was necessary to show that the child was in the way and that it was the duty of the driver of the car to see him. There was an absence of testimony in this respect.

The judgment should be affirmed, with costs.

Ingraham, J., concurs.  