Joseph Pinto, an Infant, by His Guardian ad Litem, Hilda J. Pinto, et al., Respondents, v. Mr. Softee of N. Y., Inc., Appellant, et al., Defendant, 22 A.D.2d 874

Memorandum by the Court. Judgment in favor of plaintiffs reversed on the law and the facts and the complaint dismissed, with $50 costs to appellant. The infant plaintiff was injured on July 14, 1959, when he allegedly fell to the street while " hitching ” a ride on the back of the appellant’s mobile ice-cream truck. There was no proof that the construction of the truck violated any statute or rule of any governmental agency. It was of a type widely used by many companies, and the rear ledge of the truck served a reasonable and necessary purpose in giving access to the rear compartment of the truck.

Appellant was held liable here not because the driver had any warning that the infant plaintiff was hitching on the truck or because the driver operated the truck dangerously or improperly on the date of the accident, but because the truck had an appeal to children and had a ledge on the rear thereof that might be utilized by children to steal a ride.

There was no duty to make a change in the vehicle that would prevent the happening of the kind of accident that occurred here — if indeed any change would have prevented boys from attempting to hitch a ride — and the Trial Judge should not have permitted the jury ,to speculate on the existence of any such duty. We hold there was no evidence of negligence on the part of appellant. Almost any vehicle will be a lure to adventuresome youngsters to steal a ride thereon. As already indicated, the construction of the truck involved herein was of the type widely used by other companies.

Hence, the construction may not be considered a trap or nuisance. That one or more children had in the past allegedly attempted to steal rides on the truck, did not require that appellant reconstruct its truck. Even were the doctrine of “ attractive nuisance ” recognized in this State, this case would not fall within its ambit, since there is no basis for applying that doctrine to appellant’s truck, which was no public or private nuisance and which was a veheile in motion, performing a legitimate function under the care and custody of an operator.

Very few trucks, operated on the streets, are constructed so that boys of tender years cannot climb upon them. Owners of such trucks cannot be east in damages merely because a child is injured in attempting to hitch a ride on them. If the complaint were not dismissed herein, we would have, in any event, reversed the judgment and granted a new trial on the ground the verdict was against the weight of the credible evidence and was grossly excessive.