McGarry

Action for personal injuries.

The appeal is from a judgment in favor of defendant. Plaintiff is the eight year old minor daughter of Neil McGarry, who is her guardian ad litem. The complaint is in two counts. The first charges in substance that the personal injuries suffered by the minor child were inflicted upon her when she was crossing Geary Street at Twenty-fourth Avenue, as a pedestrian, by the negligence of defendant, in that such defendant carelessly drove his automobile and struck plaintiff, fracturing her skull and right pelvis bone, shocking her spine and nervous system and injuring her brain. The second count is based upon the theory that defendant had the last clear chance to avoid seriously injuring the child after she had been knocked down by and was lying under defendant’s machine. This count alleges that while Clara McGarry was in such position and after the automobile had been brought to a stop, defendant carelessly and negligently started it and ran over and across the body of said minor, so that the right-hand wheel thereof passed over her chest and body inflicting permanent and serious injuries.

The defendant by his answer denied negligence and alleged that…