
    Florence Dudley, Resp’t, v. Robert E. Westcott, Prest., App’lt.
    
    
      (New York Common Pleas, General Term,
    
      Filed March 7, 1892.)
    
    1. Negligence—Evidence.
    A child three and one-third years old attempted to cross the street in-front of an approaching horse car, and, in So doing, ran between the front and hind wheels of an express wagon, which was coming up from the rear of the car, and was injured. Held, that the fact that the wagon was. being driven too fast just before the accident was not material, if there was enough to show that the accident would have occurred just the same had it been driven at a slower speed.
    .3. Same—Mother’s negligence charged to child.
    Where a child too young to charge it with personal contributory negligence is run over in the street by a wagon, its mother’s negligence in sending it into the street unattended must be charged to it.
    Appeal from a verdict of the general term of the city court, affirming a judgment entered on the verdict of a jury.
    
      B. Luther Hamilton {Austen O. Fox, of counsel), for app’It; Jeroloman & Arrowsmith, for resp’t
    
      
       Reversing 40 St. Rep., 506.
    
   Bookstaver, J.

This action was for damages for running over the plaintiff, who, when hurt, was three years and four months old.

No evidence was offered on behalf of the defendant, apparently because it was thought unnecessary in view of the fact that Prank W. Kearney, one of the witnesses for the plaintiff, who was on that day driving a car on the Boulevard Railroad, and who was in a position to and did see how the accident happened, testified that •it occurred by reason of the plaintiff running between the front •and hind wheels of defendant’s wagon. The court charged the jury that if the child was injured by getting in between the front and hind wheels of the wagon, then the defendant was entitled to a verdict. This then became the law of the case which should have guided the jury in arriving at a conclusion, and we think in view of the evidence was a proper charge.

The same witness further testified that he first saw the child crossing from the opposite side of the street and that he had to stop his car to let her cross ahead of him; that the child continued in her course and just met the rear wheel of the wagon, which struck her on about its last revolution as the driver was stopping his wagon. Several other witnesses were called by the plaintiff, but none of them was near enough to see the details of the accident. Mr. O’Connell, the only other witness who says he ■saw the child knocked down, was at some distance from the scene, and he says he first saw her as she was being knocked down and falling under .the wagon wheel. He testified in corroboration of Kearney’s:testimony that he put his hand on the spoke of the wheel and took it from_the child’s shoulder; thus showing that the hind wheel had not entirely run over the child, -and confirming Kearney’s evidence that the wagon had almost stopped at the time.

There is no evidence that the driver saw, or could have seen, the child or have avoided the accident by the exercise of ordinary care, as she apparently emerged just in front of the horses attached to the Boulevard car.

It is true that the case abounds in evidence tending to show that at one time the driver of defendant’s wagon was lashing his horse and going at a high rate of speed. But we think it clear that this must have been checked before the accident, for the wagon could not have been stopped in the distance it was if he had then been going at a great rate of speed. In Buckley v. G. P. & R. Mfg. Co., 113 N. Y., 540, 546; 23 St. Rep., 618, the court said: “ After the general charge of the judge to the jury, the counsel for the defendant said this to him: ‘I understand your honor to tell the jury, and I ask to have it repeated, that if it .happened from-a slip and was an inevitable accident, that there can be no recovery anyway, whether it was a dangerous employment or not’ And the judge replied: ‘I think I have charged that substantially; I cannot repeat it’ That charge required a verdict for the defendant The evidence is undisputed, all coming from the plaintiff himself, that the accident did happen from a slip, and was, therefore, in that sense inevitable. We are, therefore, of opinion, as this case now appears on the record, the trial judge having held as the law of the case that the defendant was not responsible for any carelessness on the part of O’Rorke, that the plaintiff should have been nonsuited.” And we think that that reasoning is decisive of this case.

Fenton v. Second Ave. R. R. Co., 126 N. Y., 625; 36 St. Rep., 385, was a case where the plaintiff’s evidence tended to show that, he fell on the track from ten to fifteen feet in front of the car, and that the brake was not applied until the car struck the boy.” The court reversed the judgment for the plaintiff, saying: “ There is no evidence that, by the exercise of all the vigilance that the law requires of drivers under such circumstances, they could, after the boy had fallen upon the track, have arrested the car in time to save him from injury. In other words, there must be evidence not only of negligence, but of negligence that caused the injury.”

It is not material if the defendant’s servant was driving too. fast at one time, if there is enough to show that the accident would have happened just the same even had he been driving at a slower speed.

In this case from the only real evidence as to the occurrence of the accident, it is apparent that the child collided with the wagon after the horse and the front wheels had passed in safety; she was apparently injured from crossing directly in front of the horse car; and in endeavoring to avoid that danger rushed into another. The accident arose from her own act and not from any 'act of the defendant

But respondent contends that the plaintiff was a child between three and four years of age, and was non sui juris, hence personal negligence could not be attributed to her. If the child was non sui juris, then it was negligence on the part of plaintiff’s mother to send her into the public street or to permit her to go unattended into the street, which should have been passed upon by the jury under proper instructions.

In Barry v. Second Avenue R. R. Co., cited by the respondent. and reported in 41 St Rep., 342, it was held that there was some evidence to warrant a finding by the jury that the parent exercised ordinary care to prevent the child going into the public street unattended. Within the case there cited and the principles laid down by the court, per Pryor, J., the judgment in this case should be reversed unless there is some evidence of care on the part of plaintiff’s mother exercised to prevent the escape of the child into the public street or to attend it while in the street

The only evidence upon the subject is that of the mother, and! from a careful examination of it we are unable to discover any testimony on her part to show any care whatever. On the contrary, the evidence is plain that in the language of' the court in the case of Hartfield v. Roper, 21 Wend., 615, the mother did allow the child to go into the highway unattended. On this question see cases cited in Barry v. Second Avenue R. R. Co., supra, and Flynn v. Hatton, 43 How. Pr., 333; Callahan v. Bean, 9 Allen, 401; Wright v. Malden & Melrose R. R. Co., 4 id., 283; Lehman v. Brooklyn, 29 Barb., 234; Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y., 326-333; Stillson v. H. & St. Jo. R. R. Co., 67 Mo., 671; Bay Sh. R. R. Co v. Harris, 67 Alabama, 6; Pitts., Fort W. & C. R. R. Co. v. Vinings, Admr., 27 Indiana, 513; Cauley v. Pitts., Cin. & St. L. R. R. Co., 95 Pa. St., 398; 5 Southern Law Review, N. S., 684.

The judgment should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event

In ordering a new trial, however, we do not intend by anything that has been said to intimate that the case is one which should not be submitted to the jury upon the question of contributory negligence, but only that such submission should be accompanied with proper instructions in regard to the care the parent should; exercise toward a child of such tender years.

Bischoff, J., concurs; Pryor, J., concurs in result.  