Schramm v. Parker

The opinion of the court was delivered by Fort, J. This is an action of tort to recover for injuries suffered by the plaintiff, a boy of nine years of age, by being run into upon the public highway by a horse and wagon of the defendant, driven by a servant of the defendant. Only one question is raised, namely, did the trial judge commit an error in refusing to charge the defendant’s request “that if the jury find that the boy did not look for wagons, before running toward the wagon, he is guilty of contributory negligence and cannot recover.” Where there is doubt whether a person is guilty of negligence which contributed to his injury, the question is for the jury. McLean v. Erie Railroad Co., 40 Vroom 57; S. C., 41 Id. 337; Deem. Neg., § 403. The request in this case was too general. It asked the court to tell the jury that if they found that the plaintiff did not look for wagons in the street before running toward a wagon he was, as a matter of law, guilty of negligence, which contributed to his injury, if thereby he was injured. [244] But, it seems to me, whether he was so guilty or not might not depend solely upon that isolated fact in the case. The evidence ^s to whether the plaintiff ran into, or even toward, the wagon which injured him, is conflicting. Upon it reasonable minds might differ. But, conceding the proof establishes the fact that the boy did run toward the wagon, still proximity and the speed at which the vehicle was going, and all the other circumstances surrounding his act in running toward the wagon, are factors entering into the question of whether the mere act of running toward the wagon, without looking, was or was not an act of negligence which contributed to his injury. The court was not required to tell the jury that if they found but the single fact that the plaintiff ran toward the wagon, without looking, they must find, from that fact alone, without giving any force to the other fact and circumstances surrounding the act, that the plaintiff was guilty of negligence which contributed to his injury. There was no error in refusing to charge as requested, and the judgment of the Supreme Court is affirmed. For affirmance — Fort, Garretson, Pitney, Bogert, Green, Gray. 6. For reversal — Ti-ie Chancellor, Dixon, Vredenburgi-i, Veoom. 4.