
    Crescenzo Totarella, as Administrator of the Estate of Joseph Totarella, Deceased, Respondent, v. New York and Queens County Railway Company, Appellant.
    
      Negligence — what is not contributory negligence as matter of law—proof of acts on previous occasions.
    
    Proof that a hoy eleven years of age started to cross the tracks of a street railroad, when a car, running up grade at the rate of six miles an hour, was fifty feet distant, that he stumbled and fell upon the track and was run over by the car, does not, as matter of law, establish negligence on his part which contributed to the accident.
    Where, in such a case, it appears that the car, which ran over the hoy while he lay between the tracks, could have been stopped in from two to four feet, the street railroad company is negligent independent of the question of the boy’s negligence.
    Evidence that the boy had on previous occasions stolen rides on defendant’s cars is not competent to disprove positive testimony that on the occasion of the accident he was crossing the street.
    Appeal by the defendant, .the New York and Queens County Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 27th day of December, 1899, upon the verdict of a jury for $2,500, with notice of an intention to bring up for review upon such appeal an order bearing date the 8th day o'f December, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      William E. Siewart, for the appellant.
    
      Franltlm Pieree, for the respondent.
   Woodwabd, J.:

This is an action for negligence. There were two distinct theories of the accident placed before the jury by the evidence. One of these was that the plaintiff’s intestate, a boy between ten and eleven years of age, was engaged in stealing a ride upon the rear end of a car operated by the defendant upon a double-track system; that when the car on which he was riding was about to meet a car going in the opposite direction, he dropped from his position on the first car and ran in front of the advancing car just in time to be struck and knocked down and under the wheels of the second car, giving the motorman no time in which to bring his car under control, although it was moving up grade at the rate of about six miles per hour. The other version of the accident, and the one relied upon by the plaintiff, is that the boy started from the curbstone; that he was fifty feet from the advancing car when he attempted to cross; that he stumbled and fell, and that he was run over and injured so seriously that he died from the effects of the accident soon afterward.

The learned trial court charged the jury, without exception by either party, that “ even though you find that the boy did not look to the fight or to the left when he undertook to cross the track of the defendant company, and even though you find that he did not see the car approaching, when he might have seen it had' he looked, nevertheless if' he fell upon the track and lay there in a position of danger, and the motorman of this car could, by the exercise of ordinary care, have checked its course and could have prevented the death of this boy, and did not do so, then his omission to perform that duty was an act of negligence which would justify a recovery by the plaintiff in this action.” The jury evidently accepted the plaintiff’s version of the accident, and brought in a verdict for the plaintiff for $2,500.

The defendant urges upon this appeal that the boy was suijivris, and that it was necessary to a recovery that he should be shown to have been free from contributory negligence. We are of opinion, however, that, under the evidence, accepting the version most favorable to the plaintiff, and which had the approval of the jury, it cannot he said that the negligence of the plaintiff complained of, even if established, contributed in any legal sense to the accident, and, therefore, that the court did not err in refusing a nonsuit. There was evidence that the plaintiff’s intestate started to cross the track in front of the car while yet the car was fifty feet away. It cannot be said, as a matter of law, that a boy of eleven years of age is guilty of negligence in attempting to cross a street railroad under these circumstances' with the car running at the rate of six miles an hour. The boy is said by the witnesses for the jflaintiff to have stumbled and fallen upon the track. The car was moving up grade at the rate of six to eight miles an hour; it was in evidence, through defendant’s own witness, that the car, by the use of the appliances at hand, could have been stopped in two to four feet; the plaintiff’s witnesses testified that it might have been stopped in forty to fifty feet. Assuming this to be true, it was negligence for the defendant to run over and kill this boy, independent of the question of his own original negligence, assuming it to have existed. This question was fully discussed in the recent case of Weitzman v. Nassau Electric R. R. Co. (33 App. Div. 585) and it need not be repeated here.

It is urged also that it was error to exclude testimony as to the previous conduct of the plaintiff’s intestate in stealing rides upon the cars of the defendant, and Wendell v. N. Y. C. & H. R. R. R. Co. (91 N. Y. 420) is cited in support of the proposition, but a careful reading of that case does not justify the contention of the defendant. The question to be determined was whether the plaintiff’s intestate on the day of this accident was guilty of negligence contributing approximately to this accident; and evidence that on a previous occasion he Tiad stolen a ride upon the car of the defendant would not be competent to dispute the positive evidence that on the occasion of this accident he was crossing the street. In the Wendell case the question of evidence was not raised; the court merely referred to the fact that it appeared in evidence that plaintiff’s intestate, a child seven years of age, was familiar with the railroad crossing and the custom of the flagmen to be present and to give warning, as the child had previously been warned by them. The evidence was in the case without objection or exception, so far as appears from the opinion, and that case does not constitute an authority in support of the defendant’s contention on this appeal.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  