I accept the statement of legal principles to be found in the prevailing opinion. I find it difficult, however, to accept the majority view because, in my judgment, the rulings cited in its support are not applicable to undisputed facts in this case which favor the ruling by the Appellate Division.
Briefly as to the facts: A route salesman was making house-to-house deliveries of the defendant's bakery products. In doing so a light electric truck was employed which had a small cab with a sliding door on either side and a floor which was fifteen inches above the pavement. There was no seat in the cab, the vehicle being operated by the salesman from a standing position back of the steering wheel and within reach of the control mechanism. Within but a few moments prior to the accident the defendant's truck was passing along a level street in the borough of Queens when it stopped at the curb in front of a house where the salesman was to make a delivery. Having turned off the power by means of a switch which controls it, and having put the power lever in its neutral position, the salesman set the emergency brake, put his delivery basket on his arm and left the truck. As he did so he passed three children — including the infant plaintiff then six years old — who stood "right at the truck ready to get into it." Instead of paying no heed to the three children the salesman gave them a sharp warning which was definite and clear — "I told them not to go into the truck, they will get hurt." A brief time thereafter — while the salesman was standing at the door of his customer's home and within sight of the rear of the truck — his *Page 21 attention was attracted by a noise from his truck. As he turned he saw the vehicle moving slowly forward along the level pavement. With the emergency brake set the truck's speed could not, and did not, develop more than two miles an hour. So it was that the salesman was able quickly to overtake the slowly moving truck, at the door of which stood the infant plaintiff alone. The salesman called out to him not to step off but his warning was of no avail. Personal injuries were sustained by the child when he jumped from the truck platform and fell between the truck and the curb.
We are thus dealing with facts which differ in vital points from those upon which rest the rulings cited by the majority opinion. Here it must be conceded a truck was stopped on a level pavement with power turned off, transmission mechanism at neutral, and the emergency brake set. In addition there is the important undisputed fact that a clear warning was given to the infant plaintiff which amounted to a command not to do the very thing which later led to personal injuries sustained by the child for which, it is said, a jury may hold the defendant liable. I find in the record no evidence from which a jury could find a breach of legal duty by the defendant's salesman. In my opinion the standard of care which the decision about to be made demands of the defendant's agent is more exacting than was legally due the infant plaintiff in the circumstances proven. (Maloney v.Kaplan, 233 N.Y. 426, 428, 429.)
Accordingly, I dissent and vote for affirmance.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY and DESMOND, JJ., concur with CONWAY, J.; LEWIS, J., dissents in opinion in which FINCH, J., concurs.
Judgments reversed, etc. *Page 22