McCloskey v. Chautauqua Lake Ice Co.

Opinion by Mk. Justice McCollum, The principal question raised by this appeal is whether the injury the plaintiff received on the 10th of October, 1893, was caused by the negligence of the defendant’s servant. There can be no doubt that the injury was properly attributable to the act of the servant in backing the ice wagon against the curb at the opening in front of Ketterer’s shop, but whether it was a negligent act is another and different matter. He who alleges negligence as the basis of his suit must prove it, because the injury alone affords no cause of action. If the evidence submitted to sustain his allegation amounts to more than a scintilla it presents a question for the jury although it is flatly contradicted by the evidence of the defendant. Negligence is the. want of care required by the circumstances.. It may “ lie in omission or commission, in the failure to do what a reasonable [37] and prudent person would ordinarily have done under the circumstances of the situation, or in doing what such a person under the existing circumstances would not have doiie.” Baltimore Railroad Co. v. Jones, 95 U. S. 439. There is no question of contributory negligence in the case because the age of the plaintiff excludes it. It is not claimed that the verdict is excessive, and the criticism of the excerpt from the charge which is the subject of the second specification appears to us as destitute of merit and unwarranted. We regard the charge as clear and impartial, and we fail to discover anything in it to mislead or prejudice the jury against the defendant. We therefore limit our further consideration of the case to the single question whether the evidence was sufficient to warrant the jury in finding that the negligence of the defendant’s servant was the proximateuause of the plaintiff’s injury. If it was, the judgment must be affirmed, and if it was not, the court erred in refusing the defendant’s point, and the judgment must be reversed. The plaintiff was lawfully in the place where he was caught and his leg was crushed by the ice wagon. His position when discovered would indicate that he was caught while entering the open space maintained for the accommodation of the adjacent property owners and the general public in getting from the street to the sidewalk and from the sidewalk to the street. The placing of the ice wagon against the 'eurb in the manner described was an obstruction to travel through this space and there was no apparent necessity for it. It may have lightened the labor of delivering the ice to the customer but it was by no means indispensable to the proper performance of that work. A few minutes before the occurrence in question, and but a short distance from it, the ice was delivered to another customer through a similar opening upon the sidewalk, while the horses and wagon were standing parallel with the curb as they were near Ketterer’s before the driver turned the horses toward the center of the street to back the wagon to the open space. ■ The reason given for the change in the method of delivery was that the amount of ice to be unloaded at the latter place was greater than at the former. If the wagon had remained parallel with the curb at Ketterer’s as it was at Voscamp’s when the ice was taken from it, it is quite certain that there would have been no occasion for this suit. [38] We think there can be no serious doubt that in backing the wagon against the curb in the manner described it was the duty of the person having charge of it to see that the way was clear for doing so without injury to parties entering or leaving the open space which he was about to obstruct, and that his failure to exercise this precaution would constitute negligence, for the consequences oí which his employer would be responsible. Did Malone, the driver, do what an ordinarily prudent man would have done under the circumstances ? Did he look to see whether the way was clear for him to back the wagon against the curb in the manner he did ? He says that when he drove up to the open space, he stopped and looked out on the left hand side of the wagon “ to see whether he had the rear end of it in the center of the space or he could swing* around and get into the space,” and that he did not “ see any one in the open space or near there.” He says also that he did not see the plaintiff before he was caught and crushed between the step of the wagon and the tree box. Eugene Winslow, a witness called by the plaintiff, testified that he was driving up Centre avenue about a hundred and fifty feet below the ice wagon and that it and the horses were then standing parallel with the curb; that he saw the plaintiff crossing the street towards the opening in front of Ketterer’s shop and that he had reached the middle of the street before Malone commenced to turn the horses around. We quote his description of what followed: He said: “ I saw the driver start to pull, his team around to back in there, and then as soon as the boy saw the horses he tried to get out of the way and ran for the curbstone. He thought the driver, as I thought myself, intended to go down Centre avenue, but instead he went to back into the curbstone, and the boy started for the curbstone and he ran up to the tree box, and before he could get away from the tree box the steps of the wagon caught him in the leg and held him tight and crushed him. I called to the driver to pull out, and he stuck his head out of the wagon. He has to look around to see, he can’t see anything, he is all boxed up.” This description of the occurrence was not changed or materially qualified by the cross-examination, nor antagonized in any degree by the testimony of any witness except that of Malone. In fact, Malone and Winslow were the only witnesses in the case whose testimony relates to or in any wise affects the question of tha [39] alleged negligence of the defendant. But it seems to us that their testimony required the submission of this question to the jury. If Winslow was where he said he was when Malone started to turn his horses around, and the plaintiff was then in the center of the street and advancing toward the opening would not Malone, in the exercise of the care required by the circumstances, have seen them ? He says he did not see either of them, although he says he looked to see if the way was clear for him to back against the curb. If Malone had seen the plaintiff in the center of the street, and running toward the opening, under the circumstances described by Winslow, ought he not to have relinquished his purpose to back the wagon against the curb, until the obvious danger the plaintiff was in was passed ? If Malone had the knowledge that Winslow had respecting the position and movements of the plaintiff, can it be said that in backing against the curb he exercised the care required by the circumstances ? It is true, that the testimony of Malone and Winslow was somewhat conflicting, but if that of the latter was believed, it afforded, we think, a reasonable basis for an inference that the negligence of the former was the proximate cause of the injury the plaintiff received. Judgment affirmed.