The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, District Judge.
This action, brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, arises out of a collision between a post office truck and the infant plaintiff, Willis Jones. The action was tried by the court without a jury. The law to be applied is the substantive law of New York, 28 U.S.C. §§ 1346(b), 2674; Williams v. United States, 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761 (1955); Landon v. United States, 197 F.2d 128 (2d Cir. 1952).
The accident occurred on August 27, 1962, at or about 1:45 p.m. The situs of the accident was West 114 Street, between 8th and 7th Avenues, Borough of Manhattan, City of New York. At the time of the accident, the block in question was concededly a play street and clearly marked as such. The defendant's driver, Robert Taylor, admittedly knew that the block was a play street and the infant plaintiff, Willis Jones, eight years of age at the time of the accident, knew that fact too. The testimony regarding the events leading up to the moment of impact is contradictory and presents sharp issues of credibility for determination by the court.
The mail truck was driven by Robert Taylor, an employee of the United States, acting within the scope of his authority. The driver was accompanied by an assistant, Wallace Bonaparte, who did not testify. The government represented that he was no longer in the employ of the Post Office Department but was presently with the armed forces in Korea. His deposition was never taken. Mr. Taylor testified that he parked the mail truck near 255 West 114 Street to make a delivery. He added that after completing the delivery he made a diligent effort to chase children away from the truck and checked his three mirrors on the vehicle. The right side mirror, however, was not set so that the whole right side of the truck could be seen. He then started the truck and proceeded slowly down the street. The accident occurred soon after the truck began to move from its parked position.
Different theories have been presented to the court as to how the accident occurred. The defendant contends either that the infant plaintiff was trying to hitch a ride by climbing on the side of the truck, or that the infant plaintiff was injured by running into the truck. Defendant's first theory is supported solely by the testimony of Mr. Sam Williams that he saw the infant plaintiff "* * * try to hitch a ride on the truck" by clutching the guard rail. Mr. Williams' testimony is unreliable. At the time those events took place he was preoccupied with his own child who was playing at a point which was in the opposite direction from where the accident occurred.
Defendant's second theory derives from the testimony of Mrs. Paige Edwards, one of plaintiffs' witnesses:
"* * * he ran for the ball, and as he ran for the ball the truck was coming at the same time, not at such a speed, and he hit against the truck, and he fell down." T.R. 53; Post Trial Memorandum of Defendant, at p. 19.
The defendant, however, neglected to include Mrs. Edwards' next sentence:
"The truck hit against him and he fell, and then I ran out to him."
This seeming conflict in Mrs. Edwards' testimony appears to be no more than a simple mistake in the light of her previous testimony during the trial that the mail truck hit Willis:
"He was playing ball, and he was chasing the ball, and at the same time when the truck, the mail truck was coming down, and then he went to get the ball and he stopped down to pick up the ball, and it was because this mail truck hit him, and knocked him backwards under the righthand side, on the righthand side, and he went back under the bumper and the back wheel." T.R. 49.
Willis also testified that he was hit by the guard rail and that thereafter he found himself lying on the ground with his legs under the truck. His cousin's testimony was generally consistent with Willis'.
At the time of the accident, the following regulation was in effect:
"Whenever authorized signs are erected indicating any street or part thereof as a play street, no person shall drive a vehicle upon any such street * * * except drivers of vehicles having business or whose residences are within such restricted area. Any such driver shall exercise the greatest of care in driving upon such street." Art. 7, Sec. 74, Traffic Regs. Dept. of Traffic, City of New York.
The driver acknowledged that driving on a play street required the utmost care and caution. Even where a street is not officially designated a play street, a driver must exercise extraordinary care when children are at play. Hammer v. Bloomingdale Bros., Inc., 215 App.Div. 308, 213 N.Y.S. 743 (1st Dept. 1926).
The defendant's employees did not use the degree of care called for in the circumstances. The driver's assistant was under a duty to keep an adequate lookout. Regrettably he failed in that duty. The fact that the right-hand mirror was set so that the right side of the vehicle could not be seen meant that if the assistant were negligent in his duties the driver was in no position to compensate for such a lapse. It can be reasonably inferred that had the driver and his assistant been vigilant, exercising the degree of care called for in the circumstances, they would have seen Willis in time to prevent the accident. One must see what there is to be seen. Unger v. Belt Line Ry., 234 N.Y. 86, 136 N.E. 303 (1922); Weigand v. United Traction Co., 221 N.Y. 39, 116 N.E. 345 (1917); Goodman v. Brown, 164 Misc. 145, 298 N.Y.S. 574 (City Ct. Rochester 1937). The preponderance of the credible evidence impels to the conclusion that the defendant, by its employees, was negligent in the operation of its vehicle, thereby causing injury to the infant plaintiff, Willis Jones.
The cases cited by the defendant to show that its employees were not negligent are patently inapposite. They do not apply to a driver operating his vehicle on a play street while in use by children who, lulled into a sense of security by that sanctuary, are more vulnerable to the hazards of traffic. In Abbott v. Railway Express Agency, 108 F.2d 671 (4th Cir. 1940), the driver not only spoke to the injured boy and his companion but actually saw them in a place of safety before the injured boy was run over. Smiel v. United States, 147 F. Supp. 835 (N.D.N.Y.1957), involved a situation where in order to have seen the decedent the driver would actually have had to look under his truck. In Wallach v. R. Gray's Sons, Inc., 244 App.Div. 873, 280 N.Y.S. 79 (3d Dept. 1935), the injured infant ran into the defendant's truck by darting from the ...