Frank H. Crocker, by Guardian, etc., Appellant, v. The Knickerbocker Ice Company, Respondent

Frank H. Crocker, by Guardian, etc., Appellant, v. The Knickerbocker Ice Company, Respondent. It is not negligence per se to drive a team at “ a lively trot ” in the streets of a city. One so driving is not limited to any particular rate of speed, but is bound simply to use proper care and prudence, so as not to cause injury to other persons lawfully upon the streets. (Argued April 20, 1883; decided May 8, 1883.) This action was brought to recover damages for injuries alleged to have been caused by the negligence of defendant’s servant. Plaintiff, while crossing a street in the city of Brooklyn, was run over by one of defendant’s ice wagons, which was at the time being driven by a boy, a son of one of the defend- . ant’s employes. The court say: “ In the disposition of this case we assume that the lad who was driving the wagon at the time of the accident may be treated as the' servant of the defendant, and yet we are of opinion that the plaintiff was properly nonsuited. “ The only proof of negligence was that the driver was driving the team on ‘ a lively trot.’ It cannot be held as matter of law or fact that-merely driving at the rate of speed stated, in the streets of a city, is negligence. Persons, driving in the streets of a city are not limited to any particular rate of speed. They may drive slow or fast but they must use proper care and prudence, so as not to cause injury to other persons lawfully upon the streets. There was no proof in this case or at least not sufficient proof for submission to the jury, that the team was driven carelessly, or that the driver was negligent.” Herman F. Koepe for appellant. Samuel J). Morris for respondent. [MAJORITY — Per curiam] Per curiam opinion for affirmance. Rapallo, Mlller} Earl and Fmon, JJ., concur. Rug-er, Ch. J. Andrews and Dakforth, JJ., dissent. Judgment affirmed.