
    Henry Lhowe, an Infant, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (New York Common Pleas
    General Term,
    December, 1895.)
    The fact that a child was six years old and attended school is sufficient to authorize the submission to the jury of the question whether he- was swi juris. - .
    Whére there is evidence to the effect that plaintiff had ample time to cross the. street, car tracks when he attempted to do so; that the approaching car was not near enough to make danger apparent; that he would have crossed in safety if he had not fallen, and that it was not until he attempted to rise that he was struck by the car, it is not error for the court to charge the jury that if .the accident happened in that manner plaintiff, was not guilty of negligence,-- 0
    Evidence as to the- position of the plaintiff when found immediately after the'accident is competent and mat'efiál' as tending.to show bis position when struck by the car.
    Where the evidence as to .the distance of the car .when the plaintiff ran . upon the track is conflicting, the question of the defendant’s negligence . is- one for the jury to determine.
    It "is not negligence, as matter of law, to attempt to cross street car tracks without looking in all directions when a car js fifty feet distant.
    Appeal by defendant from a judgment of this court in favor of the plaintiff, entered upon the verdict- of a jury for $500, and from an order denying a motion for a new trial, in an action to recover damages for an injury sustained by the alleged negligence of defendant’s servants or employees in thé management of one of defendant’s cable cars on Third avenue at Seventy-sixth street.
    The plaintiff was crossing' the street when struck by the car. The defense was a general denial of negligence and an averment of contributory negligence of the plaintiff or of other persons.
    
      Hoadly, Lcmterbaoh, <& Johnson (Henry L. Scheuerma/n, of counsel), for appellant.
    
      C. Sheldon Carothers (Francis L. Wellman and Sumner B. Stiles, of counsel), for respondent.
   Daly, Oh. J.

The evidence shows that the infant plaintiff was a boy about six or seven years of age, and that he went to school in the city of Hew York. While there was no other evidence of his ability to take care of himself while on the public street, those facts were sufficient to authorize the submission to the jury of the question whether he was of sufficient age to be allowed in the street. It cannot be assumed that a child six years of age is incapable of protecting himself from danger in streets or roads. Cosgrove v. Ogden, 49 N. Y. 255; Stone v. Dry Dock, etc., R. R. Co., 115 id. 104. Where the only evidence in the case was that the child was seven years old, the question whether it was swi juris was held to be for the jury. Stone v. Dry Dock, etc., R. R. Co., supra.

The criticism upon the evidence as to the boy’s age, because the physician testified only that the boy was “ six or seven,” without specifying whether he meant years, months, weeks or days, is hardly justifiable, as the evidence showed that the boy attended school. As to the identity of the boy ' in court with the plaintiff, that fact seemed to be assumed on the trial, and the question about it is raised for the first time ón appeal. The evidence that the boy vrent to school in this ■ city, coupled with what the jury could judge from Kis appearance as to his capacity, and the testimony as to. his apparent age given by the physician, are sufficient to uphold a verdict that the boy was sni juris. The jury must have, so found', for they were instructed that if .he was not of sufficient age and discretion to go upon the street unattended, then the parents were guilty of negligence in that respect, and there-could be no recovery. - " ; 1

The main question in the case is whether the infant plaintiff exercised the care and prudence to be expected from his age. The witness Salzman- testified that the boy attempted to, cross the track when the car was half a block distant;. that he fell and was- struck by the car when he got Up-. The witness Greene corroborates this to some extent by saying that when he first saw the plaintiff he was in a stooping, position on the track. The witness Smith says that the boy started to. cross the street, reached .the track and fell down, and that when he . fell “ the car was -right on top of him; ” but the witness modifies this by stating that the way the accident happened was that the boy did not. get up quick enough;, that witness thought “he was' going to get run over because he fell down and he couldn’t .get up quick enough when he fell down.”This shows that the car could not have been directly on top of ' him when he fell, but that sufficient time elapsed' after the > fall, and before the car reached him, for him to have got ,up and got out of the way had he done so more, quickly.

Differences in- the testimony of the witnesses as to the exact spot at which-the plaintiff-fell, whether on the east or west rail of 'the track, .and of the position of his body, do not warrant -the jury or the court in disregarding their testimony,, as -they were, of course, speaking from momentary impressions. Differences in1 the testimony of a witness with regard to his1 own position in the street when he saw the accident might be disregarded where there was evidently a simple mistake which ' was immediately corrected.

- The testimony of the plaintiff’s witnesses, if credited,. showed that the plaintiff had ample time to cross the track when he attempted to do so; that the approaching car was not near enough to make danger apparent; that he would have-crossed in safety if he had not fallen, and that it was not until he was attempting to rise that he was struck by the car. In this state of the evidence the trial judge was warranted in charging the jury that if the accident happened as the plaintiff’s witnesses testified, then he was not guilty of any negligence. This instruction did not take from the jury the question whether the plaintiff was sui juris, for they were instructed that if he were not he could not recover in any event. It referred only to the question of his personal negligence in case-the jury found he had possessed sufficient discretion to be permitted upon the street.

It is contended that the court erred in permitting one of plaintiff’s witnesses to testify as to the position in which the-boy was found immediately after the accident. This was competent and material as tending to show his position when struck by the car. There was no attempt- to show declarations or acts-of plaintiff after the accident.

The court was asked to charge “ that the car of the defendant had a superior right- of way in the street to the plaintiff,, and it was the duty of the plaintiff to get from in front of the-car if he could do so, and if the jury found he did not their verdict must be for the defendant.” This was refused, and the appellant attempts to sustain the correctness of his request: upon the authority of Thompson v. Buffalo R. R. Co., 145 N. Y. 196-199, in which it is said: Whilst persons have the-right to cross streets at any place they may select, and ."are-not confined to street crossings, street railway cars between such crossings have a preference, and while they must be managed with care, so as' not to injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way.” The difference between this language and the request is manifest, for the whole question -of defendant’s care was omitted, and the plaintiff’s duty to use reasonable care only was not included.

■ The question of defendant’s negligence was properly left to the jury. The testimony of the seven witnesses of the acci-dent called by defendant, among whom were two -passengers, two persons in the street,-the gripman and conductor and one other employee of the company, was that the plaintiff ran onto the downtown track from behind a car on the uptown track when the car that struck him - on the downtown track was.only two or three feet from him. .If this were true then the defendant was not negligent .and. the plaintiff was; but the testimony was in direct contradiction to the plaintiff’s witnesses and.it was the province of the jury to decide the conflict. According to the plaintiff’s witnesses the car was between fifty feet and half a block distant from the plaintiff when he fell on the track, . and it was manifest -that had a lookout been kept by the gripman he could have avoided' the "accident. It is urged that there is no evidence that the plaintiff looked in. all directions before crossing the track, but the distance.of the car from the spot at which he attempted ter cross made it quite safe to -him to proceed, and- the omission of that precaution contributed in no way to the accident. ' It would not be negligence, in law to attempt to pass in front, of a street car fifty feet away. Wells v. Brooklyn City R. R. Co., 58 Hun, 389; 34 N. Y. St. Repr. 636; 12 N. Y. Supp. 67.

The judgment and order appealed from must be affirmed.

Bischoff and Pbyob, JJ., concur.

-Judgment and order affirmed,.with costs. '.  