Moebus v. Herrmann (108 N.Y. 349, 1888)

Danfobth, J.

The jury have found that the child was not careless and that the defendant’s driver was negligent. If there is evidence to support these findings the only circumstance which distinguishes this case from Murphy v. Orr (96 N. Y. 14), is that the child whose conduct is now in question, was not on the cross-walk. A person on foot has, however, a right to cross the street where he pleases, and the inquiry is the same, whether, under the circumstances in any given case he does so with due caution. So with the driver. He was bound to be watchful at all points, elsewhere as well as at the cross-walk, and had he been so the jury might well have said from the evidence, he would have seen the child in season to have prevented the collision. He was sitting on a high seat, the view was unobstructed, and from it he could see “ all over the street,” but he testifies that he did not see the child “ until the shaft knocked him down.” It is probable he did not see him at all, for the evidence from other witnesses is that he drove on, not clicking his horse nor heeding the cries of the bystanders until, after going seventy-five feet or thereabouts, he was forcibly stopped by a person who had seen the occurrence. It also appears that during the intervening time the horse was moving at a slow trot, the driver having the reins in his left hand, while with his head turned to the right, i.