This case has been three times tried, the first two trials resulting in a disagreement. The claim of the plaintiff’s *870attorney is that the plaintiff, a boy within two months of eight years of age, was sitting upon the curb with his feet in the gutter on a paved street — West Thirty-fifth street; that a large truck owned by the defendant came along and ran over his right foot, or part of it, which injured his foot badly, requiring that the. toes, excepting the big toe, be cut off, and the foot to be otherwise maimed. The defendant’s theory of the case is that a number of boys were playing tag and that this plaintiff ran out from the curb in his game and slipped, his feet going under the truck, which was going along normally at a proper distance from the curb.
This is a most singular case, in that the plaintiff was not himself put upon the stand at all. The plaintiff was a boy nine years old at the time of the trial. There is only one witness for the plaintiff who saw the accident from nearby, as shown by the plaintiff, and that is a young boy who is but two years his senior. He says that the plaintiff was sitting there and the truck came along and ran over his foot. Everybody is agreed, however, that the boy was facing in the direction from which the truck came; otherwise, it could not have crushed the right side of his foot while the boy was sitting upon the curb. If he had put his foot up on the curb he could have avoided the accident. Therefore, at least without his evidence, the judgment cannot be sustained for lack of proof that the plaintiff was free from contributory negligence.
The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide event. The finding that the plaintiff was free from contributory negligence is reversed.
Clarke, P. J., and Shearn, J., concurred; Scott and Page, JJ., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.