
    Ermenegilda de Ioia, as Administrator, etc., of Francesco de Ioia, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence—ahoy falling when four feet in front of the horses of a horse cm and killed — contributory negligence.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the latter, a boy about ten years of age, while attempting to cross the tracks of the defendant's railway about ten o’clock at night at a dark point where there was no crossing, fell when about four or five feet in front of the horses attached to one of the defendant’s horse cars, and that, although the car could he stopped within six feet and the distance between the collar of the horses and the rim of the front wheel was about fifteen feet, the car was not stopped until the front wheel rested upon the hoy’s leg. There was evidence that, at the time the hoy fell, the driver had his head turned to the right talking to some one.
    
      Held, that the complaint was properly dismissed, as the evidence did not justify an inference that the driver was negligent.
    
      Semble, that, as the hoy was sui juris, his attempt to cross the track at the time and under the circumstances in which he did, when the car was not more than ten feet distant, constituted contributory negligence.
    Rumsey, J., dissented.
    Appeal by the plaintiff, Ermenegilda de Ioia, as administrator, etc., of Francesco de Ioia, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of May, 1898, upon the dismissal of the complaint by direction of the court after a trial at the NTew York Trial Term.
    
      S. Livingston Samuels, for the appellant.
    
      Charles F. Brown, for the respondent.
   O’Brien, J. :

The action was brought to recover damages for injuries resulting in the death of the plaintiff’s son, through the alleged negligence of the defendant in the operation of one of its horse cars.

When the motion was made to dismiss the complaint at the close of the plaintiff’s case, the questions presented to the learned trial judge were the same as those which we must consider on this appeal, namely, whether there was sufficient evidence to go to the jury upon the defendant’s negligence, and whether the plaintiff’s intestate was free from contributory negligence. In determining them, the plaintiff is entitled to the most favorable inferences to be drawn from the testimony.

Examination thereof shows that the boy was about ten years of age; that on the evening of May 26, 1897, at about ten o’clock, he was crossing from the east to the west side of Sullivan street, between Broome and Watts streets, and when he reached the most westerly track, at a point about twenty feet distant from the Watts street crossing, he slipped and fell backwards under the defendant’s car, which was then approaching, and that his leg was crushed by the front wheel of the car to such an extent that an amputation was necessary, from the effects of which operation, as the result of shock, he died. The manner in which the accident occurred is described by the witnesses as follows :

Richard E. Sheehan testified that, while standing on Watts street, he heard hollering ” a couple of times and heard the horses being pulled up, and by that time the boy was under the car and was lying on the west rail, about twenty feet from the crossing; that it was then somewhere between nine and ten o’clock at night, and that it was pretty dark there; that the boy was lying across the inner rail of the down-town track, and one leg was lying by the front wheel and one of his feet was sticking out between the two wheels of the car.
Joseph Frenza, fourteen years of age, testified that on the night in question he was with the deceased before the accident on Watts street, and that together they proceeded to Sullivan street; that he got to the opposite side of Sullivan street first, and then turned around and looked and saw the boy Ioia starting to cross, and that when walking over he slipped and fell and thereafter the car went over him; that the horses on that car was distant from this boy, when I saw him slip and fall, fan r or five feet. The horses were being driven not fast' and not slow. When I saw the boy fall, I turned around and looked back, and there he was under the car. I said to the driver, Stop, there is a little boy under the car! ’ I said that before the boy was under the wheel. * * * When I called to the driver * * * I don’t know if he was talking or not. The driver did nothing towards stopping the car when I called to him.” The witness further testified that the driver did not put on the brake; that when the boy slipped and fell, he fell on his back, and that before he fell he was walking, and, upon cross-examination, said that the boy slipped and fell upon reaching the westerly rail; and as to the conduct of the driver said : “ I saw the driver put on his brake; the front wheel didn’t run over Frank; it ran up against him * * * right on top of him.”

The next witness, Caldo, testified : “ When I saw the boys going down from the corner from the sidewalk to the middle of the street, this car was near the corner. * * It may have been ten feet from the car to the boy — ten or twelve; I can’t tell exactly; * * * I saw the boy when he was on the track before he was run over; when he was just beginning to cross the track. * * * When I saw the boy standing on the track, the car was from him at that time about ten feet. * * * The car was going * * * the regular ordinary gait. * * * I heard a cry. That was the first thing I knew of any accident. I did not see the boy slip.”

Manfredi, another witness, testified : “ I was * * * on the corner * * * and the car was coming down and three boys was going across from Watts street to Sullivan street and one boy * * * fell down. * * * He fell right in the middle of the track, about on the second rail, * * * the rail next to the west rail. I can’t tell where the car was when he fell; about nine or ten feet — eight feet; I can’t tell. The horses were about eight or ten feet—about nine or ten feet from the boy. * ' * * When the boy slipped and fell Í seen the driver driving the horses. * * * When the boy fell he went ahead with the car. He did nothing with the brake. I did not see him try to stop the car before he got to the boy. The car'was going ahead. * * * We found him under the front wheel. * * * The car was coming like it always goes, the ordinary gait. * * * The wheel did not pass over the boy’s leg. * * * It was on top of his leg.”

In addition to this evidence there was that given by two drivers, who testified as experts that a car could be stopped on a level track within six feet; that the average horse from the collar to the tip of his tail is five feet, and that from the horses to the dashboard is about four feet—altogether fifteen feet from the front of the horses to the rim of the wheel; and this, with the father’s testimony that the boy was bright, intelligent and healthy, and that he went to school and also helped him in his business selling fruit, concluded the plaintiff’s evidence.

It appears that the witnesses, in giving the distances at the time the boy fell, were speaking some of the distance from the horses and some with respect to the distance from the boy to the car. The fair inference is that the deceased fell on the track four or five feet in front of the horses, and it clearly appears that the cal' was stopped before the front wheel had passed over the boy’s leg.

There would be no possible hypothesis upon which the theory of the driver’s negligence could be urged or predicated were it not for the fact that the car was more than six feet away from the boy when he fell, and, therefore, by the testimony of the drivers, could have been stopped before it reached him, coupled with the testimony of one witness that the driver, at the moment the boy fell, had his head turned to the right talking to some one, from which it is claimed that the inference is to be drawn that if the driver had not been so engaged he would have seen the boy. But to say that the driver was guilty of negligence, upon the facts appearing, we must go to the extent of holding that, under any and all circumstances, the driver should never speak to any one on his car; that he must have his attention directed to the front, and that his failure, even in the night time, to see a boy who falls more than six feet in front of liis car constitutes negligence on his part. There is authority for holding that the driver is obliged to be alert and watchful at crossings, but we think it would be extending the rule beyond any former decisions to hold that the same degree of care is to be observed at every point of the route. It must be remembered moreover that this accident occurred at night, and it was testified by one of the witnesses that it was dark at the place where the boy fell. There is no suggestion, nor can it be inferred, that the driver was aware of the boy’s presence on the track till he was under the car and too close to the wheel to avert the accident; or that the driver saw the boy or could anticipate that the boy was on the track at that point. If the driver is to be charged with negligence, we are bound to hold that it was his duty, at a place on the route which was not a crossing and which was dark, to have his attention directed to tile front; and that he should have seen the boy fall while he was crossing the track about four feet in front of the horses and should have been able by checking the car to avert the accident. In other words, we should be obliged to hold that the failure of the driver to. observe the boy when he slipped on the track in the night, four feet in front of the horses, at a part of the route not a crossing, justifies-the inference of negligence.

That this is a more rigid rule than has been applied in former-decisions is shown by Bello v. Metropolitan Street Railway Co. (2 App. Div. 313), where an accident happened within a block of where this one occurred, between five and six o’clock at night when it was only a little dark, and it appeared that the boy was on the track where the heads of the horses were twenty-five feet from him; and where, as here, it seemed that the driver was talking to a man on the platform. In the opinion in that case it was stated that, “ considering- * * * the close proximity of the horses to the boy at the time he fell on the track, which left but a second or a tenth of a second within which the driver must act to avert the injury, * * * it left the inference just as consistent with the absence as with the presence of negligence on the part of the driver.” And the Court of' Appeals held in Fenton v. Second Avenue Railroad Co. (126 N. Y. 625) that where a boy in crossing the street in the daytime fell when twenty feet in front of an approaching car and was injured, -the defendant was not negligent. (See, also, Reich v. Union Ry. Co., 78 Hun, 417; Stabenau v. Atlantic Avenue R. R. Co., 15 App. Div. 408 ; Lavin v. Second Avenue R. R. Co., 12 id. 381, and Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420.)

Most of these cases are authorities also for the additional proposition that where, as in this case, the boy was suijioris, his attempt to cross the track after dark and above the crossing in front of an approaching car not more than ten feet distant, going at the usual rate of speed, was such negligence as would prevent recovery.

"We think that the disposition made by the learned trial judge was right, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., Barrett and Patterson, JJ., concurred j, Rumsey, J., dissented.

Judgment affirmed, with costs. 
      
      
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