
    Mary Levine, as Administratrix, etc., of Benjamin Levine, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — injury to a boy six and a half years of age, in charge of his brother, twelve years of age, from being struck at a street crossing by a oar running fourteen miles an hour — negligence not imputable to the parents —presumption where a witness called on a former trial is not called on a subsequent one.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, a boy six and a half years of age, it appeared that on the day of the accident the decedent, accompanied by his brother Philip, who was twelve years of age, being desirous of crossing from the east to the west side of Broadway in the city of New York, on the line of the northerly crosswalk of Thirty-fifth street, stood on the curb at the northeast corner of such streets until a number of blockaded north-bound cars had passed; that, after these ■cars had passed, the elder boy looked up and saw a south-bound car at or near Thirty-sixth street; that he then took the decedent by the hand and started westerly across the street, walking at an ordinary pace; that as the boys reached a point between the north and the south-bound tracks and near, at or on the easterly rail of the south-bound track, the elder boy looked up and saw that the south-bound car was almost upon them; that he hesitated for a moment and then dropped his brother’s hand, dashed across the track in front of the car and escaped without injury; that the easterly side of the front of the south-bound car struck the decedent, inflicting injuries which resulted in his death.
    There was evidence that the distance from the southerly line of Thirty-sixth street to the line of the northerly crosswalk of Thirty-fifth street was 220 feet and that the distance from the curb at the northeast corner of Broadway and Thirty-fifth street to the east rail of the south-bound track was about 31 feet.
    There was also evidence that the car which struck the decedent was traveling at the rate of fourteen or fifteen miles an hour; that the motorman gave no signal or warning of its approach, and did nothing to slacken its speed until after the accident; that the day was warm and bright, and that the track was dry. The decedent and his brother were both bright boys, and the latter was accustomed to go about the city alone. "
    
    
      Held, that the decedent’s parents were not guilty of negligence in allowing the decedent to accompany his elder brother;
    That, while the negligence of the elder brother would undoubtedly be imputable to the decedent, it could not be said, as matter of law, that the elder brother was guilty of negligence, but that such question was one of fact for the jury;
    That the question of the defendant’s negligence was also a question of fact, and was properly submitted to the jury.
    The mere fact that a witness called by a party on the first trial of an action is not produced by him on the second trial thereof, and that his absence is not explained, does not give rise to any presumption or inference that the testimony of the witness, if given, would be unfavorable to such party, where it does not appear that the testimony of the witness would be material, or that the party could command his presence.
    Van Brunt, P. J., and Ingraham, J., dissented.
    Appeal by the defendant, the Metropolitan Street 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 New York on the 3d day of March, 1902, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 11th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Maurice Untermyer, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of Benjamin Levine,' alleged to have been caused by the negligence of the defendant. The decedent was six and a half years of age, and on the 16tli day of August, 1901, he and his brother Philip, twelve years of age, were going- from their home on East Third street to visit their aunt, who resided on Thirty-ninth street near Seventh avenue., They hoarded a Broadway car and after they passed Thirty-fourth street it was delayed by a blockade of cars between Thirty-fourth and Thirty-fifth streets. Their car stopped a little south of Thirty-fifth street, there being a car or two ahead of it and three or four behind it, all between Thirty-fourth and Thirty-fifth streets. They alighted from the car and walked to the northeast corner of Thirty-fifth street and Broadway, intending to cross Broadway to the west. When they arrived at the Herald Building corner, the cars that had been delayed commenced moving north, and they remained standing near the curb until all of the blockaded north-bound cars passed. The evidence on the part of the plaintiff shows than the elder boy then looked up and saw a south-bound car at or on Thirty-sixth street; that the boys then started westerly across Broadway on the line of the northerly crosswalk of Thirty-fifth street, the elder boy having the decedent by the hand; that Broadway was asphalted and there was no distinct crosswalk, the pavement forming the only crossing; that they walked at an ordinary pace ; that as they reached a point between the north and south-bound track and near, at or on the easterly rail of the southbound track, the elder boy looked up and saw the south-bound car almost upon them; that he hesitated for a moment and then dropped his brother’s hand and dashed across in front of the car and escaped without injury, but the easterly side of the front of the car struck the decedent, inflicting injuries which resulted in his death; that the blockade of cars on the north-bound track had existed for about five minutes, and the car which struck the decedent was the first car that had passed on the south-bound track within the same or a greater length of time; that it was behind time and was filled with passengers on their way to the races and no passengers were waiting to board it on Thirty-fifth street; that it was going very fast, its speed being such as to attract the attention and cause comment on the part of newsboys who were watching for the approach of south-bound cars for the purpose of selling newspapers containing entries for the races to the passengers ; that the speed of the car was estimated by newsboys, who had been accustomed to judge the speed of cars and to time them, at fourteen or fifteen miles an hour; that no gong or bell was sounded and the speed of the car was not slackened for the crossing; that the motorman gave no signal or warning and did nothing to slacken the speed of the car until after it struck the decedent; that it was a warm, bright day and the track was dry; that there was a light down grade from Thirty-fifth to Thirty-sixth street; that the speed of the car was such that it was not stopped after the accident until the front part of it or all of it had passed entirely over Thirty-fifth street; that the decedent was a bright boy and his elder brother, who had him in charge, was also bright, and had been in school for many years and was accustomed to go about the city alone; that the length of the block from the southerly line of Thirty-sixth street to the northerly line of Thirty-fifth street is 212 feet 1^ inches, and from the southerly line of Thirty-sixth street to the northerly crosswalk line of Thirty-fifth street is 220 feet; that the distance from the easterly curb, where the elder boy says he looked and saw the south-bound car at or on Thirty-sixth street, and where other witnesses say he was when they saw him look toward this car, to the east rail of the southbound track on the line of the crosswalk, being the line along which the boys traveled, is about 31 feet.

Many of these material facts are controverted by the testimony presented on behalf of the defendant; but the testimony of the elder brother and of the two newsboys and a proprietor of a news stand who were standing at the southwesterly corner of Broadway and Thirty-fifth street, and of another newsboy who was standing at the northeasterly corner of Broadway and Thirty-fifth street, was sufficient to fairly justify the jury in finding that these are the circumstances under which the accident occurred. It is evident that the parents were not guilty of negligence in allowing the decedent to accompany his elder brother. It is not disputed that the decedent was too young to be chargeable with personal negligence Undoubtedly the negligence of the elder brother, his custodian would be imputable to him; but it cannot be said as matter of law that the elder brother was guilty of negligence. There were many facts established indicating the exercise of care and caution on his part. He testifies that he observed that the cars which were blockaded had begun to move and he waited until they had all passed before venturing across; and in this case he is corroborated by other witnesses who saw him looking up and down and observing these cars as they approached. He testified that after they passed, he looked up and down before leaving the curb and saw that the south-bound track was clear except that this car, which was then on or at Thirty-sixth street, was approaching, and in this he is also fully corroborated by other witnesses. Manifestly it was not negligence for him then to proceed across with his brother. If the southbound car had not been approaching at such an unusual and negligent rate of speed, it is evident that they would have had ample time to pass the track in safety before it reached the crossing. The evidence justified a finding that the car, instead of approaching at a reasonable rate of speed and being under control of the motorman when it reached the crosswalk, was approaching about seven times as fast as the decedent and his brother were walking, or fourteen or fifteen miles per hour. Whether, in these circumstances, it was negligent for the decedent’s custodian not to look again before reaching a point of danger from the south-bound car was a question for the jury. The jury resolved that question in favor of the plaintiff. The evidence is somewhat conflicting as to whether, when the elder boy looked up and saw the south-bound car upon them as he says, the boys were then at a point of safety or whether they were in a position where, if they remained, they would have been struck by the car. However that may be, it is clear, from the evidence adduced in behalf of the plaintiff, that they were either at a point of danger or dangerously near it; and, in view of the reckless speed and manner in which the car was approaching according to the plaintiff’s witnesses, it cannot be said as matter of law that the elder brother should have exercised cool, collected judgment, and should have stepped back and pulled his brother back to avoid the car which was almost upon them. We are of opinion, therefore, that both questions of negligence became questions of fact and were properly submitted to the jury.

The defendant’s counsel requested the court to instruct the jury that the failure of the plaintiff to produce as a witness on this trial one George Borst, claimed to have been a witness for the plaintiff on a former trial, “that the jury may infer” that his testimony, if given, would have been unfavorable to the plaintiff. The court declined this request and the defendant excepted. We think this was not error. There is no reference in the record to George Borst as having been a witness on a former trial. One of the defendant’s witnesses testified that at the time of the accident he was talking to a liaekman named Boyle who he said was a witness for the plaintiff on the last trial. Doubtless the request was intended to refer to-this witness, but this is all the record discloses concerning him; and it is disclosed, as has been seen, by the testimony of one of defendant’s witnesses. It does not appear what Boyle’s relations to either party was, nor does it appear what the nature of his testimony was. The mere fact that a witness was called by a party on a former trial, imposes no obligation on the party to either call him or explain his absence on a subsequent trial. The request of the defendant in this regard as first presented related to two witnesses, and the court in declining that request stated correctly the general rule, “ that if either side had under control and within their command witnesses who could testify as to any of the material facts connected with this accident and did not produce such witnesses, that that fact may be taken into-consideration by the jury; ” and further added that it did not appear that both of the persons named in the request were witnesses on the former trial, and also said: “It does not appear here but that each of the witnesses mentioned by you are equally under the control of the defendant and subject to its subpoena.” The defendant also-excepted to these last remarks of the court. We find nothing in the record to show that these statements made by the court were not correct. There is no reference in the record to one of the persons thus referred to as witnesses. The failure of either party to produce these witnesses, if they were witnesses on a former trial, gave rise to no presumption or inference; and there was no prejudicial error in what the court said. There was nothing from which the jury could infer, one way or the other, as to what testimony was previously given by these witnesses, or that they could give material evidence on either side of the case.

It follows that the judgment and order should be affirmed, with costs.

Patterson and Hatch, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.

Judgment and order affirmed, with costs.  