Dennis Doyle, an Infant under the Age of Fourteen Years, by Julia Doyle, His Guardian ad Litem, Appellant, v. James C. Foster, Respondent

Dennis Doyle, an Infant under the Age of Fourteen Years, by Julia Doyle, His Guardian ad Litem, Appellant, v. James C. Foster, Respondent. (No. 1.) First Department, October 23, 1908. Negligence — person standing in roadway run down by truck — when, negligence and contributory negligence for jury. A boy twelve years of age who was run down by a truck was not guilty of contributory negligence as a matter of law by standing on the roadway of a city street for three minutes while watching a game played by other boys. Where the plaintiff was run down by the defendant’s wagon coming from behind, without warning, while he was standing in the roadway three feet from the gutter and there were no other vehicles or obstructions in the street, the defendant’s negligence is for the jury. Appeal by the plaintiff, Dennis Doyle, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of March, 1908, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the New York Trial Term. I. Henry Harris, for the appellant. William S. Cogswell, for. the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: This action was tried with Doyle v. Foster, No. 2 (128 App. Div. 281), decided herewith, for the injuries sustained by the plaintiff in consequence of being run over by a truck belonging to the defendant in the street. The injury resulted in the amputation of his left leg ■and there were other serious injuries. The plaintiff, a boy of thirteen years of age, testified that' he was in Barrow street shortly after three o’clock on the 8th of February, 1906 ; that he was about three feet from the gutter in the roadway when the shaft of the defendant’s wagon struck him and knocked him down; that he was standing with his back' towards ■ the east looking towards the west when the wagon came up behind him, and had been standing in this position about three minutes before he was struck; that he did not hear the wagon coming, neither the driver nor anybody else spoke to him before he was struck; that when he was injured he was watching a “ cat game ” on Barrow street; that he was not playing, but just watching thé game; that he had seen the horse that hit him two or three minutes before; that at the time of the accident he was twelve years old. Upon this testimony the court dismissed the complaint. I know of no rule which imputes contributory negligence as a matter of law to a person who stands three minutes in the roadway of a street. Whether or not the plaintiff is non sui juris is of no consequence. He was bound to exercise the care and caution of a reasonably prudent person of his age and mental development, and n this case, whether he was guilty of negligence was for the jury. As to the defendant’s negligence, that also was a question for the jury. The plaintiff was standing in the street in which, so far as appears, there were no other vehicles or obstruction. The truck ■belonging to the defendant drove up behind him and ran over him without warning; this was evidence of the negligence of the driver. 1 It follows that the judgment must be reversed and a new trial ■ordered, with costs to the appellant to abide the event. Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.