Scanlon v. Temple , 271 A.D.2d 920 ( 1947 )

Appeal from a judgment of the Supreme Court in favor of plaintiffs, entered March 1, 1946, in Bronx County, upon a verdict rendered at a Trial Term.

Per Curiam.

This case is close bn its facts and we are not free from doubt as to liability. Taking the evidence most favorably to the infant plaintiff, however, as we are obliged to take it on a verdict in his favor, we find evidence that the infant plaintiff ran at a diagonal across the street for a matter of fifteen or twenty feet beyond cars parked along the curb and that the defendant driving at what might be found to be an excessive speed through a district crowded with school children, without sounding his horn, struck infant plaintiff with the right rear fender of his truck and then travelled fifty or sixty feet before stopping. There is no direct evidence that the infant plaintiff was ever in front of defendant’s truck or within his vision, but the evidence stated above, considering the speed at which defendant was driving and the speed at which infant plaintiff was running and the distance covered by him in the street before being hit, would warrant a finding that the infant plaintiff was running in front of the truck and within the vision of defendant so that the latter should have seen the infant plaintiff. As one witness testified: “ * 6 * suddenly the boy ran between two cars. Then a car came and the boy was running towards Westchester Avenue and ran 15 feet before the car hit him. The boy was running toward Westchester Avenue and the back fender hit him.”

We, therefore, sustain the verdict. We are satisfied, however, that the medical testimony in support of infant plaintiff's claim of permanent injury is not well founded and that the verdict in infant plaintiff’s favor is excessive. The judgment will he set aside and a new trial ordered, therefore, with costs to the appellant to abide the event, unless the infant plaintiff consents to a reduction in the judgment in his favor to .‘'¡2,690.84 in which event the judgment as so modified is affirmed, without costs.