
    Bernard Paul, an Infant, by Joseph Paul, His Guardian ad Litem, Respondent, v. Walter L. Clark, Appellant.
    Second Department,
    February 6, 1914
    Motor vehicles — negli gence — collision with child at street crossing — evidence insufficient to sustain recovery.
    A boy four years of age while walking with his brother and sister, aged fourteen and five years respectively, broke away from the sister’s hand, ran into the street and collided with an automobile at a crossing before he could be overtaken by his brother. The chauffeur was proceeding at a proper speed with the car under control, but the sudden appearance of the child did not give him time to avoid the accident.
    In an action to recover for injuries to the child, held, that a judgment in favor of the plaintiff should be reversed and a new trial granted.
    Appeal by the defendant, Walter L. Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 16th day of June, 1913, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 24th day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      Theodore H. Lord [Lyman A. Spalding with him on the brief], for the appellant.
    
      Bertram G. Eadie [Guy O. Walser and J. Charles Leuze with him on the brief], for the respondent.
   Thomas, J.:

The plaintiff, aged four years, walking with his brother and sister, severally fourteen and five years of age, broke away from the sister’s hand and ran into the street, pursued but not overtaken by the brother, until he collided at the crossing with the side of defendant’s car, which was going south on an intersecting street. The act surprised both the plaintiff’s custodians and the chauffeur, but the fault of it has been ascribed to the latter, although the jury was charged that he was proceeding at prudent speed with the car under control. Thus the duty of guarding the child was delegated by its parents to the brother and sister, and attached to the chauffeur, who was using the street with suitable prudence. He turned the course of the car to the left, but did not stop until the car was on the opposite sidewalk. If it was a question of direction he chose with judgment, inasmuch as a detour to the right would have intercepted the child. The event shows that the collision could have been avoided only by stopping the car, inasmuch as the horn was sounded, the brake applied and the speed diminished. But the chauffeur states that the sudden appearance of the child did not give him, time to stop the car, and there is nothing to dispute this judgment. As the facts appear, the chauffeur was without initial fault, and the only duty that rested upon him was in good faith to make the best available use of his opportunities and skill to avoid injuring a child whom his youthful guardians had allowed to escape.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jerks, P. J., Rich, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  