
    David Mitchell Thomson, Jr., an Infant, by David Mitchell Thomson, his Guardian ad Litem, Appellant, v. Egbert B. Seaman and Egbert B. Seaman, Jr., Respondents.
    
      -Negligence — charge that “if the story of the defendants witnesses he true” the verdict must he for the defendants.
    
    In an action to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendants, a charge that “if the .story of the defendants’ witnesses be true, that the accident happened as they say it did, and not as the plaintiff’s witnesses say it did, your verdict must be for the defendants," constitutes error, unless it appears that the testimony of the defendants’ witnesses, if believed by the jury, and the other evidence in the case not in conflict therewith, established as matter of law that the plaintiff was guilty of contributory negligence or that the defendants were free from negligence.
    What case is not a proper one for the application of the rule charged, considered;
    Appeal by the plaintiff, David Mitchell Thomson, Jr., an infant, by David Mitchell Thomson, his guardian ad litem, from a judgment of the. Supreme Court in favor of the defendants,, entered in the office of the clerk of the county of New York on the 8tli day of February, 1901, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 28th day of February, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Herbert C. Smyth, for the appellant.
    ,Frederick Hulse, for the respondents.
   LAUGHLIN, J. :

This is an action for personal injuries alleged to have been sustained by David Mitchell Thomson, an infant who was thirteen years of age, through the negligence of a coupé driver in the -employ of the defendants. The accident occurred shortly before one o’clock on the 11th day of May, 1900. The boy resided on •Sixty-ninth street, and was attending the school at Seventy-seventh street and Amsterdam avenue. On returning from his home to the ■school during the noon recess he crossed Seventy-second street on the easterly side of Amsterdam avenue. The defendants’ team and coupé were approaching Amsterdam avenue from the east, being driven along the northerly side of Seventy-second street, but near the middle of the street. They met on the crossing and the boy was struck, thrown to the ground and injured either by the nigh horse or the left-hand or southerly splinter bar. The boy testified that when he left the Southerly curb of Seventy-second street he saw the coupé coming about half way down the block to the east, and after he had proceeded twelve or fifteen feet into the carriageway the left front leg of the nigh horse hit him on the right side and knocked him over, and the left-hand or southerly wheel passed •over his leg.

Other evidence was given in behalf of the plaintiff corroborating the boy and tending to show that the coupé was going at a fast trot, very rapidly ; that the entire northerly side of the street was free and unobstructed, so that the driver could have readily turned out to avoid the accident; and that at about this time a pony cart, with a Shetland pony attached, which was coming easterly on Seventy-second street from Riverside drive, was crossing Amsterdam avenue ■toward or to the south of the boy. •

In the charge the court, after briefly drawing the attention of the jury to the evidence on the part of the plaintiff, said: “ And you will compare that evidence with the evidence of the defendants’ witnesses, whose story, as I recall it, is mainly contradictory of the story of the plaintiffs. And if the story of the defendants’ witnesses be true, that the accident happened as they say it did, and not as the plaintiff’s witnesses say it did, your- verdict must be for the defendants.”

To this charge the plaintiff took two exceptions: One, to so much thereof as stated that the story of defendants’ witnesses was mainly contradictory of plaintiff’s, and the other to so much thereof as directed the jury to render a verdict for the defendants if they believed the story of the defendants’ witnesses to be true.

This charge can only be sustained if the testimony of the witnesses called by the defendants, if believed by the jury, and the other evidence in the case not in conflict therewith, established as matter of law either that the boy was guilty of negligence which contributed to the injury or that the defendants’ driver was free from negligence contributing thereto. (Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193, 198.)

It, therefore, becomes necessary to consider the testimony of the witnesses called by the defendants. The driver of the eoupé testified, in substance, that he was driving about the middle, within a foot or two or a little north of the middle, of Seventy-second street; that within one hundred and fifty-five feet of the corner of Amsterdam avenue he saw the pony wagon coming from tlie west, and saw the boy step from the curb on tile south side of the street; that the boy walked about five or six paces into the street, with his attention attracted to the pony cart which was crossing Amsterdam avenue and the street railway tracks therein; that as he stepped from the curb he stepped sideways off of the crossing and backed towards me as .1 was driving through, and in backing up he came within two feet of the carriage and I said, ‘ Look out there; ’ and with that he made a jump sideways and the splinter bar caught him in the hip and knocked him down ; ” that he had the horses half pulled up when the boy rvas coming towards the carriage and swerved them to the right to avoid a collision and pulled them up so suddenly that they came to a stop the moment the boy was struck; that the horses were going quite slow, just a little faster than a walk at the time of the accident; that the splinter bar projected about six inches beyond the wheel. On cross-examination he said that he saw the boy walk out' about five paces or fifceen or sixteen feet from the curb and stop with his face toward the witness ; that the boy passed in front of and was facing the pony cart which was then Crossing Amsterdam avenue; that the coupé was about one hundred and fifty-five feet or four or five houses away from the boy when he stepped from the curb and about twenty-five or thirty feet from him when he turned around to look at the pony cart; that he knew the boy wanted to cross the street, but supposed the boy’s intention was to stop until the coupé passed but did not see him stand to let it pass by ; that “ I did not see him stop at all. I did not see him stop when he turned around ; he walked backwards from the time 1 was twenty-five or thirty feet away. I might have been more than that. Perhaps about that distance — maybe not so much. As he was backing across the street at this distance he could not see mv wagon; I. had a plain view of him. * * * At that time there was nothing between me and him.” That the first he said to the boy was “ Look out there,” and at that time the boy was about a foot and a half from the wagon and “ made a sudden jump towards the carriage sideways. When I halloed lie jumped sideways, like this, to the horses, and that is the time I changed the direction of the horses so that the splinter bar wouldn’t touch him. I had not changed the direction of my horses up to the time the boy jumped. I had perhaps twenty feet space on my right-hand side between me and the curb; ” that I was not really going as fast as a trot, so that I was really walking —• about that — just really walking; just the horses walking; it may be a little trot occasionally, just'a step, once in a while. It was between walking and a trot; ” that the horses were very well trained animals, and that he could bring them to a stop within three feet; that he was going in an absolutely straight line up Seventy-second street and could have turned his horses off the line one way or the other in a second. Mrs. Baldwin, who occupied the right-hand side of the seat in the coupé, did not see the accident, but she testified that the horses were only going moderately at the time, not rapidly and not walking. I say not walking. There were two horses, and they were trotting. "* * * Were going not fast * * * I would say it was about twice as fast as a person ordinarily walks; ” that her attention was drawn to the accident by an exclamation of her companion, at which time the speed of the vehicle had been greatly decreased, and it came to a stop almost at that time. Mrs. Cummings, who was riding in the coupé and seated on the left-hand side, testified that the whippletree or splinter bar struck the boy. “I should say we were going at that time moderately slow. The driver stopped instantly; ” that she saw the boy standing on the street. He was standing in the street; at the time that he was injured. At the time he was struck, I-don’t know how long he had been standing there. I had. seen him just at that moment; ” that she only saw him just when he was, struck and at that time he was facing her. In answer to the question, “ As a matter of fact could you tell whether he had been struck by some front portion of the horse and turned around at that time? she said, “ Tes; because the boy was standing right in the street; that she did not see the boy backing or jump, and she further testified that she hardly had an opportunity to make up her mind what-the boy ivas doing at the moment, but she thought he was standing there; that “ I don’t know that he was standing there, any appreciable length of time, I don’t know that it was any more than a. moment. . The wagon was in motion in a straight line all this time * * * I don’t know how near to the horses the boy was standing when I saw him. I did not measure how much space there was so, I cannot tell. My recollection is that he was quite a distance from, the horses. I don’t know how much. I don’t know how- much to-the left-hand side. I don’t know if there was an appreciable-distance. I think the boy was not touching the horses at the time-I saw him.” The caretaker of a house opposite where the accident-occurred testified that he saw the gear behind the horses -strike the boy; that the boy was passing over the crosswalk and that the pony cart had reached Amsterdam avenue and the boy kept looking kind of sideways watching the pony cart; that he heard the driver holloa, “hey, Johnnie,” and when that happened the boy fell and the driver-stopped ; that after taking the first step from the sidewalk the boy “ kept kind of shying. Looking at the pony cart. The cart was coming from ¡Riverside Drive. It was in Amsterdam Avenue maybe-a little further down. It was not crossing the tracks. Not quite to-the tracks. He was kind of shying to the uptown side. His face-was towards downtown; his face was towards the pony cart. And the pony cart was west of the tracks of Amsterdam Avenue. He was looking towards the pony cart. He was looking towards the west.” This witness also testified in substance that he did not watch the boy after he left the sidewalk until. Ms attention was drawn to-him by the halloaing of the driver. On cross-examination he was asked, “ Do you want to correct your testimony that you did not- seethe boy after he left the curb until he was struck ? ” to which he-made answer, “I seen the boy shying all until he was struck.” Another witness, who was passing northerly over the same crosswalk about ten or fifteen feet to the south of where the boy was hurt, but did not see the accident, testified that he heard someone who he supposed was the driver say, Hey, there,” and looked in front of him and saw the boy on his back. Other witnesses were called by the. defendant, but their evidence relates principally to measurements of the vehicle and horses and to the injuries, and they gave no material evidence with reference to the manner in which the accident occurred. We have not stated all of the testimony, but sufficient for the determination of the question presented.

It will be seen that this evidence did not contradict the testimony of the boy that he looked and saw the coupé at some considerable distance away before proceeding to cross the street, nor did it contradict the evidence that the street to the north of the coupé was free and unobstructed. The evidence did not show the speed at which the pony cart was approaching, or its line of travel, and the testimony as to its position at the time of the accident was quite conflicting. It will also be noted that the witnesses called by the defendant did not agree with reference to the manner in which the accident occurred. Both the boy and the driver of the vehicle had equal rights in the street, and it was the duty of each to use reasonable care in the exercise of such right. We think the evidence of the defendants’ witnesses, and the evidence introduced in behalf of the plaintiff which was not contradicted and the inference that might reasonably be drawn therefrom, presented questions for the jury as to whether this boy was guilty of negligence which was the proximate cause of the injuries, and also as to whether the accident was not caused by the negligence of the driver. (Morrissey v. Westchester Elec. Ry. Co., 18 App. Div. 67; Salt Springs Nat. Bank v. Sloan, 135 N. Y. 371; Dolan v. D. & H. Canal Co., 71 id. 285; Hart v. Hudson River Bridge Co., 80 id. 622;. Hodges v. Westcott Express Co., 39 App. Div. 545; Green v. Metropolitan St. Ry. Co., 42 id. 160; Atkinson v. Oelsner, 10 N. Y. Supp. 822; Laidlaw v. Sage, 158 N. Y. 73.) If we are right in these conclusions, this was not a proper case for the application of the rule to which exception was taken, and without considering the other exceptions which relate to matters that will not necessarily arise upon a new trial, the judgment and order appealed from should he reversed and a new trial granted, with costs to. appellant to abide the event.

Patterson, Ingraham and Hatch, J.J., concurred.

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