#### George Ehrlich, an Infant, Etc., by Pearl Krautman, His Guardian Ad Litem, Appellant *v.*The City of New York, Respondent.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Negligence — contributory negligence — sufficiency of evidence.

Where plaintiff, a boy of twelve years, at play on the sidewalk, a few minutes after seeing the approach of an ash cart in the service of the street cleaning department, was struck by the hub of the cart and injured, and in an action against the city the testimony of plaintiff was corroborated by three witnesses, and the only evidence for defendant was that of the driver of the cart who denied that his horse or wagon struck the plaintiff, and further denied ever having seen plaintiff or his witnesses before, the evidence justified a finding that the accident was caused by the negligence of the driver and that plaintiff was not guilty of contributory negligence.

*374Appeal by plaintiff from an order of the Municipal Court of the city of ¡New York, borough of Manhattan, second district, setting aside the verdict of a jury in favor of plaintiff for $250, on the ground that it was against the weight of evidence.

Schleider & Schleider (M. Spender Bevins, of counsel), for appellant.

Archibald ¡R. Watson, corporation counsel, (Terence Earley and William E. C. Mayer, of counsel), for respondent.

*Per Curiam.*

The plaintiff, a boy of twelve years, while playing on the sidewalk with some companions,, claims to have been struck by the hub of one of the wheels of an ash cart employed in the service of the street cleaning department, which threw him over, the wheel running over his left foot causing him serious injury. The accident occurred on the west side of Avenue C between Second and Third streets. Shortly before the accident plaintiff saw the cart at about the corner of Third street and slowly approaching. He was struck a few moments afterward while leaning over to pick up a button which was being used in the game he and his companions were playing. The wagon was about half a block from him when he first saw it, but his testimony is confused as to just how far from the curb the cart was at this time. At one point, he says *“*it was in the middle of the street,” and, elsewhere, he swore that *“*it was in the middle of the gutter.” He paid no attention to the wagon after he first saw it, but continued his play. The plaintiff was in substance corroborated by the testimony of three other witnesses, among whom there was the usual difference in their estimate of the speed of the car and the distance of its course from the curb, but the weight of evidence was to the effect that the cart was being driven slowly. Altman, one of plaintiff’s witnesses, testified that just before the cart struck the plaintiff, *“*it turned in sharply and came right over to the curb.”

*375The only evidence offered by the defendant was that of the driver, who, on his direct examination, denied that his horse or wagon struck the plaintiff ; that he heard nothing, and that his course was four feet from the curb. But, on cross examination, he gave the following testimony: “ Q. Did you see the boy ? A. I see three boys sparring on the sidewalk. Q. When you saw them sparring on the sidewalk what did you do ? A. I stopped my *cart'to see anything happen to me*— *I looked around quick and I see nothing happen, I drive*aheadA

He further denied ever having seen the plaintiff or his witnesses before.

The appellant cites Mastin v. City of New York, 201 N. Y. 81, as controlling. In the Mastin case, the plaintiff, a photographer, while on the edge of the curb taking a photograph, saw a cart some distance away. In order to focus his instrument, he covered his face with a dark cloth, and while his vision was thus obscured *“*for a period of five minutes *”*the cart came along and struck him. By a vote of four to three the court held him guilty of contributory negligence as matter of law. We think that case plainly distinguishable from the present. It is not claimed that it was, *per se,*negligent for the plaintiff to play upon the sidewalk, and, although he saw the cart approaching, we think he had the right to assume that the driver would direct its course so as to avoid striking him. See per Werner, J., 201 N. Y. 88. The evidence justified the jury in finding that the accident was caused by the negligence of the driver, and that the plaintiff was guilty of no negligence which contributed thereto.

The order should be reversed, with costs, and the judgment reinstated, with costs.

Present: Lehmaw, Page and Hotchkiss, JJ.

Order reversed, with costs, and judgment reinstated, with costs.