
    Agnes Nitchman, an Infant under the Age of Fourteen Years, by Adam Nitchman, Her Guardian ad Litem, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    Second Department
    October 6, 1911.
    •Railroad — negligence — duty of motorman — infants — contributory negligence of parents.
    In the pase of adults.there is no obligation on the part of the motorman of a street car to slacken his speed or sound an alarm until the danger of a collision is apparent.
    But a child five years old is not to be charged as a matter of law with the same degree of care as adults and as to such child when unattended it cannot be said, as a matter of law, that a motorman is justified in not reducing the speed of the car or giving warning until a collision with the child is imminent.
    
      It is a motor-man’s duty to operate bis car with ordinary care, having reference to the dangers to be apprehended.
    Where it appears that a mother, being sick, had her sister to do the housework and that the sister when going out to buy food left the children in the kitchen and told them to stay there until she got back, it cannot be said as a matter of law that the parents were guilty of contributory negligence because one of the children, five years old, disobeyed and went on the street where it was injured by a trolley car. Evidence in an action to recover for the injuries to such child examined, and held, that a dismissal of the complaint at the close of plaintiff’s case was error.
    Burr and Rich, JJ., dissented.
    Appeal by the plaintiff, Agnes Mtchman, an infant, etc., from a judgment of the Suprenie Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of December, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term.
    
      Robert Stewart [Donald F. Ayres with him on the brief], for the appellant.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.
   Woodward, J,:

This is a nonsuit, and the plaintiff is entitled to the most favorable view of the evidence. The jury might find from the evidence that the plaintiff, a child of five years of age, disobeying the directions of competent persons in charge of her, went down upon the street, the home being at 133 Twentieth street, borough of Brooklyn, and while in the act of crossing Third avenue she was struck by the fender of one of defendant’s cars, running at the rate of eight miles an hour, and not under control, receiving more or less serious injuries. The evidence is to the effect that the block between Twentieth and Twenty-first streets, on Third avenue, is two hundred feet long; that it • was from ten to fifteen or more feet from the curb to the first line of track on which the car was approaching, running from Twenty-first to Twentieth street; that the plaintiff stepped down from the curb when the car was at Twenty-first street, and when she was about in the middle of the block, and started to walk across the street diagonally facing the car; that the car came forward running at about eight miles an hour, sounding no warnings, and that the child had. stepped over the first rail when she was hit by the fender, and that the car, then one hundred feet from Twentieth street, did not stop until, it had reached the latter street, and then only because the trolley pole had in some manner been removed from the wire. It is undoubtedly true, as suggested, that in the case of adults there is no obligation on the part of the motorman to slacken his speed or sound an alarm until the' danger of a collision is apparent (Jackson v. Union R. Co., 77 App. Div. 161; Kappus v. Metropolitan St. R. Co., 82 id. 13; Barney v. Met. St. R. Co., 94 id. 388), but it cannot be that this is the rule to be applied in the case of an infant of five years of age, who is upon the street alone, and who is in a position to be seen by' the motorman, no vehicles obstructing the way. Children of this tender age are not, as a matter of law, to be charged with that degree of judgment and care which would be required of men and women of mature years, and it cannot be said, as a matter of law, that a motorman is justified in refraining from reducing the speed of his car or giving warning until the collision is imminent. It is the duty of the motorman. to operate his car with ordinary care, having reference to the dangers to be apprehended, and every man of ordinary intelligence knows that children of tender years may reasonably be expected todo many things which would not be regarded' as prudent on the part of older people, and the jury might have found, in this case, that the' defendant’s motorman owed the dirty of giving warning and of stopping his car to avoid the accident.

Nor do I think it could be said as a matter of law that the parents of this child, or those charged with her care, were guilty .of contributory negligence. The evidence discloses that the family lived in a-flat, one floor above the street; that the mother was ill and the children were in. the immediate charge of the mother’s sister, who appears to have been. of sufficient age to do the work of the household, and that the sister left the children in the kitchen of the home, telling them that she was going to a store to get food for the evening meal, and directing them to stay there and play until she returned home. Just how the child got out and away from the other children does not appear, but the case is certainly not devoid of competent evidence of some degree of -care, and the question was one for the jury, not for the court.

The judgment appealed from should he reversed and a new trial granted.

Hirschberg, J., concurred; Jerks, P. J., concurred in .result on the ground that point I of respondent’s points, now relied upon, was not presented in the motion to dismiss; Burr and Rich, JJ., dissented. y', . ,

Judgment reversed and new trial granted, costs to abide the event.  