Hyman Padower, an Infant, by Bertha Padower, His Guardian ad Litem, Respondent, v. The Interurban Street Railway Company, Appellant

Hyman Padower, an Infant, by Bertha Padower, His Guardian ad Litem, Respondent, v. The Interurban Street Railway Company, Appellant. Second Department, April 26, 1907. Negligence—.injury to infant by surface car—verdict for plaintiff reversed. The plaintiff, an infant, was injured by a surface car at the intersection of two streets. He testified that he had crossed the track but was warned by the driver of a team to step back, which he did and was struck by the car. It was shown by the defendant that the plaintiff was riding without - permission on the rear, step of an ice wagon and when he was required to get off he went in front of the car suddenly and was hit. On all the evidence. Held, that a verdict for the plaintiff was against the weight of evidence. Hooker, J., dissented. Appeal by the defendant, The Interurban Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of July, 1906, upon the verdict of a jury, for $1,350, and also from an order entered in said clerk’s office on the 14th day of July, 1906, denying the defendant’s motion for a new trial made , upon the minutes. Arthur M. Johnson \Bayard II. Ames, Walter Henry Wood and Henry A. Robinson with him on the brief], for the appellant. Alexander Rosenthal, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff testified that he was crossing the street on ,the crosswalk at the intersection of two streets; that he crossed the downtown car track; that the driver of a horse and wagon going up town called out to him, and he stepped back and in four or five seconds was hit by a car going down town; that he stepped back because the horse was going fast and rearing, and he feared he would run over him. He called no witness. He was between fourteen and • fifteen years of age at the time of the accident. On his own story, it is questionable that any negligence of the defendant was shown. The mo.torman testified that the .plaintiff suddenly came from behind a. wagon.. The driver of the wagon (an ice wagon) and his helper testified-that the plaintiff was riding .without leave on the rear step of the wagon, and when they m,ade him get off he went, in front of the car suddenly, and was hit. Another disinterested witness corroborated this. There was no reason for disregarding the testimony óf these- witnesses. The verdict was plainly against the weight of evidence and should have been set aside. The judgment and order should be reversed. Hirschbero, P. J., Woodward and' Jenks, JJ., concurred; Hooker, J., dissented. Judgment and order Reversed and new trial granted, costs to abide the event.