Boker v. H. Koehler & Co.

GILDERSLEEVE, P. J. The action is for loss of services of plaintiff’s wife, resulting from injuries that she sustained arising from the alleged negligence of defendant’s driver. The defendant offered no proof. The case went to the jury under a charge to which no exception of consequence was taken. They found for plaintiff, and the court set aside the verdict, upon the ground that no evidence was presented showing any fault or negligence on the part of the driver, nor any evidence of the exercise of any care or caution on the part of plaintiff’s wife to avoid vehicles that might properly pass along the roadway, upon which she was standing. The plaintiff’s wife was standing in the roadway of Rivington street, in the act of purchasing rolls from a street vendor, when she was knocked down by horses attached to a wagon of defendant. She had placed herself in a position necessarily fraught with danger, and there is no evidence that she exercised care corresponding to the exigencies of the situation. I think that the cases of Lyons v. Avis, 5 App. Div. 193, 38 N. Y. Supp. 1104, Seamon v. Mott, 127 App. Div. 18, 110 N. Y. Supp. 1040, and similar authorities that I shall not take the time to cite, fully support the position of the learned trial justice in setting aside the verdict and ordering a new trial. Furthermore, considerable might be said in support of the respondent’s claim that the damages were excessive. The order should be affirmed, with costs to respondent. GOFF, J., concurs.