# Kalbach v. Ross

> Appellate Division of the Supreme Court of the State of New York · May 3, 1911 · 145 A.D. 55

URL: https://www.frixlaw.com/law-library/cases/5220594

## Case

- **Full name:** Gottfried Kalbach, as Administrator, etc., of Carl Walter Kalbach v. Clinton M. Ross
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** May 3, 1911
- **Citations:** 145 A.D. 55; 129 N.Y.S. 243; 1911 N.Y. App. Div. LEXIS 1737
- **Precedential status:** Published
- **Opinion:** Dissent by Kruse
- **Judges:** Defendant, Eobson, Fails, Kruse, McLennan, Memorahdum, Negligence, Spring, That, Upon, Who
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5220594

## Opinion text

Kruse,. J.
(dissenting):
I do not think the deceased boy was chargeable with the same care as an adult. It is a matter of common knowledge that, a boy of sixteen does not have the mature judgment, ordinarily, as an adult. Whether he exercised such care, foresight and prudence in the work he was doing as a boy of his age, intelligence and experience would ordinarily exercise, was a question of fact, as it seems to me. And so was the question of the assumption of risk.
The more serious question is as to whether the evidence is sufficient to make out a lack of care and prudénce upon the part of the defendant. The fault, in the wagon, as I See it, as regards its use in transporting the casting, is not so much in not having the box fastened'to the front aide or running gear, as in having the rear of the box lower than the front and extend beyond the rear axle so that the casting would naturally slip back and tip up the box, as it did. In the absence of any evidence to the contrary it may be presumed that the defendant knew the shape, weight and condition of the casting, and as well the condition of the wagon itself. Knowing these conditions, I think it cannot be held as a matter of law that a reasonably prudent person would not have.foreseen that as the casting was being transported in the wagon it might slip and eventually get far enough beyond the rear axle to cause the box to tip up. Whether defendant was negligent in sending this sixteen-year-old boy after this casting,, with a vehicle such as-this, I think was a question of fact. ■
Plaintiff’s exceptions overruled, motion for new trial denied,. with costs, and judgment directed for the defendant upon the nonsuit, with costs .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5220594. Public record. Not legal advice.