
    Julietta Hyland, an Infant, by James T. Hyland, Guardian, etc., Resp’t, v. The Yonkers R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    
      1. Negligence—Railroads—Want of care and diligence.
    Where in an action for personal injuries received by plaintiff, a girl about two and one-half years old, the evidence tended to prove that the-plaintiff was on Nepporhan avenue, crossing over Asburton avenue, which runs at right angles with the former; that shortly afterwards one of the-defendant’s cars came along and stopped at the corner of Asburton avenue-to take on a passenger; that the driver then started his horses, and while they were going slowly, turned his back to give change to a passenger at the front door. As he turned again toward his horses he saw the plaintiff" lying between the tracks under the whiffletrees; before he could stop the-car the hind wheel passed over her leg and inflicted the injuries complained of: Held, that the evidence was ample to sustain a verdict for the plaintiff; that if the driver had been paying proper attention the accident might have been averted.
    2. Same—Contributory—Charge to jury.
    The jury were charged that they were to judge whether the child did what was prudent in the circumstances in which it was placed, considering its age, * * * and whether there was any omission of care oi-prudence upon the part of the child or mother which occasioned the injury, in whole or in part, and if the child or mother was not free from negligence which contributed to the injury, the plaintiff- has no cause of." action- Held, that the charge was proper.
    Appeal from a judgment entered upon the verdict of a. jury and an order denying a motion for a new trial upon the minutes.
    This was an action brought to recover for personal injuries. The defendant operates a street railroad in the-city of Yonkers, on Nepporhan avenue. Asburton avenue crosses the former at right angles. On the 27th day of April, 1887, the plaintiff, who is a child of between two and three years of age, was seen on Nepporhan avenue, crossing Asburton avenue; shortly afterwards one of the defendant’s cars came along. It was an ordinary box car,, having a driver but no conductor. The car stopped at the-south corner of Asburton avenue to receive passengers; it-then started, and while the horses were going slowly, a woman came to the door to get change; the driver made.a side turn toward her; as he turned back again toward his-horses he saw the plaintiff lying between the tracks under the whiffletrees, and before he could stop the car the hind wheel had. passed over the plaintiff’s leg and inflicted the-injuries complained of.
    On the trial tho jury were charged that “they should judge whether the child did what was prudent in the circumstances in which it was placed, considering its age.® You will then go back to those who had charge of the-child. If they were guilty of neglect, which occasioned. the accident, then the action fails. This mother tells you that the child was in the yard; that she lived fourteen steps-*above the level of the yard; that she was a poor woman;, that she had no servant, and that she sent the child down to play as usual with the neighbors’ children living in the lower part of the house; that the yard had no gate; that the child never went into the street so far as she knew, or was accustomed to go there, and did get upon the street. You are to say whether there was any omission of care and prudence upon the part of the child or mother which occasioned this injury in whole or in part. If you find that the proof shows that the' child was not free from negligence which contributed to the injury, the plaintiff has no cause of action.
    
      John E. Brennan, for app’lt; Frank E. Blackwell, for resp’t.
   Pratt, J.

—Upon aformer appeal in this case we held, it was a proper case for submission to a jury. See 15 N. Y. State Rep., 824.

The evidence is not materially changed, and we see no-reason for receding from the position we took at that time ■ in regard to the case.

The evidence is ample to sustain the verdict, and the damages are not excessive in view of the evidence as to the - injury suffered by the plaintiff.

The questions of plaintiff’s negligence and of her parents' were fairly submitted to the jury. The charge was unexceptionable, in fact it was quite as favorable to the defendant as the facts warranted, and we find no material error to have occurred during the trial. The questions put to the driver upon his redirect-examinations were properly ruled out. They called for immaterial matters and were not pertinent to the issue. The issue was not what this driver was accustomed to do, or what he regarded his first duty; the question was, what he did upon the occasion under investigation.

It is true the case fails to show how the child got upon the track, or how long he had been there, but the jury undoubtedly found, as they had a right to find from the evidence, that if the driver had been paying proper attention he would have discovered the plaintiff in season, to stop his. car.

We fail to find any error sufficient to reverse the judgment, and it must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  