Abraham Grotzky, an Infant, by Samuel Grotzky, His Guardian Ad Litem, Appellant, v. The Rosary Flower Company, Respondent

Per Curiam.

The action is for personal injuries.- The complaint was dismissed. Plaintiff appeals. The facts are substantially as follows: At seven thirty p. m., on Hovember 30, 1907, near 73 Allen street, the plaintiff, an infant of three years and ten months, was playing ball with another child on the sidewalk. The ball rolled into the street and plaintiff went to get it. He was returning and had almost reached the sidewalk when defendant’s wagon rar over him and caused the injuries complained of. When the horse was about one house or over twenty-five feet awaj from the spot where the child stood, some one called to defendant’s driver to stop. He failed to pay any attention to this warning and although there was sufficient light to enable him to see the child, and notwithstanding he had sufficient time to stop his horse and avoid the accident, he continued his course and ran over the child. The questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury, and it was error to dismiss the complaint. See Dehmann v. Beck, 61 App. Div. 505; Kennedy v. Hills Bros. Co., 54 id. 29.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

MacLean, J. (dissenting).

Granting the propriety of the submission to the jury of the question of the contributory negligence of the plaintiff, there seems to he no evidence of negligence on the part of the driver of the vehicle of the defendant. That the driver was the distance of one house from the spot where the child of between three and four years of age stood in the street, when he was called to stop, and that the street was lighted on that Hovember evening, seven thirty of the thirtieth, may hardly, without more, be said to be sufficient to go to the jury on the question of the driver’s negligence. The speed at which he was driving, or the weight of the vehicle was not shown, or that he heard or could have heard the call to stop; and the accident was not at a cross walk where he was bound to be vigilant. The dismissal for lack of evidence would, therefore, seem to have been proper.

Judgment reversed and new trial ordered, with costs to appellant to abide event.