Tierney v. New York Dugan Bros., Inc.

Conway, J. The plaintiff, a child of five years of age, suing through his guardian ad litem, and his father had jury verdicts for personal injuries and loss of services. The Appellate Division reversed upon the law and the facts and dismissed the complaint upon the law. *18 The defendant was making deliveries upon one of the streets in the county of Queens in June. Its electric truck had a platform about nine inches above the sidewalk and one could enter upon the platform from either side of the vehicle. There was a sliding door on each side which could be closed and locked. They were closed and locked in cold- but not in warm weather. There was no driver’s seat. There were, among others, two mechanical devices installed which were operable from the platform. Those were a safety switch and a power lever. There was a key for locking the safety switch. In order to start the car it was necessary to turn the safety switch and push the power lever. Both those devices were manipulated very easily. The driver testified that he parked the truck, threw off the power, applied the emergency brake and turned off the switch. He left both sliding doors opened and unlocked. He left the safety switch unlocked. He did not have a key to lock it. Without a key, there might as well have been no safety switch. Had either the doors been closed and locked or the safety switch locked, it would have been impossible to put the truck in motion. As the driver left the car, in order to make a delivery, he testified that he saw three children, of whom the infant plaintiff was one, “ right at the truck ready to get into it ” and that he warned them not to enter it. He also testified that children generally were in the habit of playing in and about the car. He left it so parked that, when he went to the house where he was to make a delivery, he could not see the platform with the instruments but only the rear portion of the truck. The infant plaintiff and the other two children played in and about the truck. They set it in motion. It began to move diagonally across the street under power, but slowly, since the emergency brake was set. Two of the children jumped off. The infant plaintiff hung on to the side door and then fell or jumped and was injured when caught between the truck and curb. We think it was a question of fact for a jury as to whether or not defendant exercised ordinary prudence under the circumstances. “ Among the members of the public to whom the duty of care was owing were children playing on the street, since their proclivities as matter of common knowledge might draw them to such objects *19 in the course of play. (Earl v. Crouch, 57 Hun, 586; 61 Hun, 624; affd., 131 N. Y. 613; Kunz v. City of Troy, 104 N. Y. 344; Long v. City of Dunkirk, 260 N. Y. 599; cf. Restatement of the Law of Torts, § 302, subd. m.) ” (Boylhart v. DiMarco & Reimann, Inc. [Crouch, J.], 270 N. Y. 217, 221.) In that instance the objects were steel beams piled insecurely in the highway. A dangerous attraction in a public highway may impose liability to a child on the part of the one responsible therefor, because of failure to exercise due care although there would be no liability if the attraction were upon private premises where the child had no right to go. In the instance presented here the defendant, in connection with its business, was practically using the sidewalk as a part of its automobile platform. (For the distinction indicated, see Walsh v. Fitchburg R. R. Co., 145 N. Y. 301, at 311, 312; Note on Attractive Nuisances, subdivision Attractions in Highways, 36 A. L. R. 34 at 148 et seq.; Nagle v. N. Y. Edison Co., 281 N. Y. 727 [tool cart left at night in a “ play street ” in New York city]; Morse v. Buffalo Tank Corp. [Finch, J.], 280 N. Y. 110 at 118; Long v. City of Dunkirk, supr a.) It was the duty of the operator of the motor vehicle involved here, when he permitted it to be unattended, to leave it in such condition that it could not be put in motion except by the intervention of an external cause not to be anticipated or guarded against. (Maloney v. Kaplan, 233 N. Y. 426, 430.) In that case, as was pointed out in the opinion, there was no unusual situation presented “ where the danger was apparent of interference by little children indulging in their natural instincts of play (Lynch v. Nurdin, 1 Adol. & El. [N. S.] 29; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301), or by meddlesome or mischievous boys (Luedeke v. N. Y. C. & H. R. R. R. Co., supra)." Here a jury might say that there was and that is the determining factor distinguishing from the instant one the cases of Thibodeau v. Gerosa Haulage & Warehouse Corp. (252 App. Div. 615; affd., 278 N. Y. 551) and Mann v. Parshall (229 App. Div. 366). In Connell v. Berland (Finch, J.) (223 App. Div. 234; affd., 248 N. Y. 641) we held that the question of negligence was for the jury where defendant parked his automobile, which was equipped with a self-starter, in a congested street, where he knew children *20 were constantly playing, with the door unlocked and with the ignition key in the switch and it was thereafter set in motion by a boy. There the gears were in neutral so that there was required, as in the instant case, two different manipulations of mechanical contrivances to start the car. There again we had the conceded knowledge of defendant that small children were playing about the instrumentality left unattended and we held that it was a question for a jury as to whether their subsequent conduct might have been anticipated by the exercise of reasonable care and ordinary prudence under the circumstances. The situation here is indistinguishable. The judgments should be reversed and a new trial granted, with costs to abide the event.