Negligence, In driving a horse, In use of private way. Evidence, Relevancy. At the trial of an action by a girl seven years of age against the owner of a horse for personal injuries resulting from the plaintiff's being run over by the horse driven with a sleigh by a servant of the defendant in a private driveway which had a travelled way about five feet wide with banks of snow on each side and with no sidewalk, there was evidence tending to show that the owner of the driveway had given to the tenants in tenement houses at one end of the driveway, and to the plaintiff's father and his family specifically, permission to use the driveway as a means of access to the street into which it ran, that the plaintiff wore glasses and was hard of hearing, that, just before the accident, which was in the early morning, she had preceded her father from the tenement house out on to the driveway and had gone to the end where it entered the public street to wait for him, standing with her face in the direction from which he was to come and with her back toward the public street, when the defendant's servant, driving the horse and sleigh at a rapid rate and shouting to her, ran over her. Portions of the foregoing evidence were controverted by the evidence of the defendant. Held, that the questions, whether the plaintiff was in the exercise of due care and whether the defendant's servant was negligent, were for the jury.
At the trial of an action by a girl seven years of age who, while standing upon a private driveway waiting for her father who was to go with her to a street into which the driveway ran, was run upon and injured by a horse and sleigh driven by a servant of the defendant, testimony by the owner of the driveway that he had given to the plaintiff's father and his family, tenants of his, permission to use the driveway as a means of going to and from their home, is admissible to show that the plaintiff was on the driveway in the exercise of a right, although neither the defendant nor his servant knew that such permission had been given.
HAMMOND, J.
This is an action to recover for personal injuries alleged to have been received by the plaintiff, then a girl seven years of age, by being run over by a team driven by a servant of the defendant. As is common in such cases, the evidence was conflicting. There is nothing to be gained by rehearsing it or discussing it in detail.
It is not questioned by the defendant that the plaintiff was properly allowed to go upon the street unattended; and it could not be ruled as matter of law that the evidence did not justify a finding that the plaintiff exercised the degree of care legally required of a child of her age. The question of the negligence of the defendant was clearly also for the jury. The first three requests were properly refused.
The evidence of Richards, the owner of the fee of the private way, that he had given the tenants of the block in which the plaintiff lived the right to use the way as a foot passage to the public street was rightly admitted. It had a tendency to show that at the time of the accident the plaintiff was not a trespasser, but was upon the way in the exercise of a right. The fact that the defendant had no knowledge that the plaintiff had a right to travel there, while it possibly might be taken into consideration upon the question of the negligence of the defendant, did not deprive the plaintiff of her right to be on the way. It is manifest that in view of this testimony the fourth and fifth requests were properly refused.
The exception to the refusal to give the sixth ruling requested, while stated as raising one of the questions involved in the case, is nevertheless not argued in the defendant's brief, and is therefore regarded as waived.
Exceptions overruled.