SMITH v. THE GRAND ST., &c. R. R. Co.

SMITH v. THE GRAND ST., &c. R. R. Co. Supreme Court, Second Department, Second District; Special Term, February, 1882. Negligence.—Evidence of Parent’s Care of Child. In a child’s action for negligent injuries to him in the street, evidence that he and his sister were accustomed to play in the street unattended, is incompetent on the part of defendant. People v. Bush, 3 Parle. Cr. 552, limited or overruled. „If such evidence be competent on the question of the mother’s knowledge, the offer should point explicitly to this purpose. Motion for new trial on the judge’s minutes. George Smith, an infant, by his guardian brought this action against the Grand Street, Prospect Park and Platbush Railroad Company, to recover damages caused to plaintiff 'by being knocked down by one of the horse cars of the defendant, through the negligence of the driver thereof. Plaintiff was less than two years of age at the time of the accident. Defendant offered to prove on the trial that plaintiff and his sister, who was about three years of age, were frequently on the street on other occasions shortly prior to the accident, and played together in the street unattended and crossed the street unattended. It was ruled out as incompetent. The jury found a verdict for plaintiff for $400, Defendant moved for a new trial. A. G. McDonald, for the motion. Chas. J. Patterson, opposed. [MAJORITY — Cullen, J.] Cullen, J. I am still of the opinion expressed on the trial, that the evidence offered was incompetent. The case cited by defendant’s counsel (People v. Bush, 3 Parker, 552), would seem to hold a contrary rule. If so, I think it erroneous, and its authority overruled by subsequent cases (Mailler v. Express Propeller Line, 61 N. Y. 316 ; Warner v. N. Y. Central R. R. Co., 44 Id. 465). It is now attempted to justify the admission of such evidence on the question of the mother’s knowledge of the plaintiff’s habits. I did not understand it was offered in that view on the trial. But even in this respect the offer did not go far enough. The defendant offered to show, not that the plaintiff disobeyed the mother’s directions, but that it was allowed to play in the street. I cannot see that this would be material upon the mother’s right to believe that the child would obey her directions. The amount of the verdict may be larger than the court' would have awarded, but it is plainly not so excessive as to justify the interference of the court. Motion for a new trial denied.