Betancourt v. Wilson

Per Curiam. On this record, the finding of negligence on the part of defendant was against the weight of the evidence and, furthermore, the testimony of infant plaintiff and his friends establishes that the infant plaintiff must have been guilty of contributory negligence as a matter of law. Since none of plaintiff’s witnesses claims to have seen defendant’s automobile before it struck the infant plaintiff, although the street through which the automobile passed was open to observation for a distance of over 200 feet, there is nothing to show the rate of speed or the other manner of driving on the part of defendant, except the simple fact that the automobile struck the infant plaintiff. Since the infant plaintiff was moving backwards, such testimony provides inadequate information to sustain liability against defendant. On the other hand, infant plaintiff and his friends uniformly testified that each just glanced up the street before participating in the particular play before the accident, but saw no automobile. The rule is well settled, that testimony to the effect that one has looked but did not see, what was there to be seen, is incredible as a matter of law. (Unger v. Belt Line Ry. Corp., 234 N. Y. 86, 90; Weigand v. United Traction Co., 221 N. Y. 39, 42; Tosto v. Marra Bros., 275 App. Div. 686; Von Der Geest v. Millinger, 276 App. Div. 1093.) Accordingly, the infant plaintiff either did not look, when he said he did, or, if he looked, he saw and disregarded. In either event, he was guilty of contributory negligence. The judgment in favor of Michael Betancourt should be ■ reversed, and order setting aside verdict in favor of Donald Betancourt modified to eliminate granting a new trial, and complaint on behalf of both plaintiffs dismissed, with costs. ■