
    Vincent Muessman, an Infant, by Jacob Racich, his Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Injury from a street railroad car—a charge that, “if the plaintiff was struck by a car as soon as he stepped upon the track, his own negligence contributed to his injury and he cannot recover,” is proper—failure to hace a car under control at a crosswalk.
    
    In an action to recover damages for personal injuries sustained by the plaintiff in consequence of his being struck by one of the defendant’s street cars while it was proceeding around a curve at Tenth avenue and Fifty-ninth street in the city of New York, there was evidence tending to show that, after the plaintiff had started to cross the track, the speed of the car was suddenly increased and that the plaintiff was struck before he could get out of its way.
    The defendant’s evidence tended to show that the plaintiff was playing in the street and started to run across the track as the car was rounding the curve and either ran into the car or was struck as he got upon the track, under conditions which would exonerate the defendant from liability.
    
      Held, that the defendant was entitled to have the court charge, “ If the plaintiff was struck by a car as soon as he stepped upon the track, his own negligence contributed to his injury and he cannot recover,” as, assuming the evidence given by the plaintiff's witnesses to be correct, the jury could have found, from the testimony, that when the plaintiff stepped upon the track, he was just in front of the car and in such a position that it would have been impossible for the motorman to stop the car before striking him.
    
      Semble, that it was error for the court to charge, “the failure of the defendant’s motorman to have the car under control at this crosswalk would, unexplained, constitute negligence on the part of the defendant.”
    
      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 28th day of February, 1902, upon the verdict of á jury for $30,000, and also from an order entered in said clerk’s office on the 12tli day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      J. M. Birnbaum, for the .respondent.
   Ingraham, J.:

The plaintiff in this action was run over by one of the defendant’s cars, sustaining injuries which resulted in the amputation of both legs, and for that injury has been awarded a verdict of $30,000. As we think there is an exception that requires us to reverse this judgment, it is not necessary to determine whether upon all the evidence the finding that the defendant was guilty of negligence and that the plaintiff was free from contributory negligence was sustained.

There was presented upon the trial a sharp conflict between the witnesses as to the position of the car at the time the plaintiff started to cross the track. There was evidence that as the plaintiff was crossing this track the car was proceeding around the curve at Tenth avenue and Fifty-ninth street, that the speed was suddenly increased, and that the plaintiff was struck before he-could get out of its way. The plaintiff testified that he saw the car before it attempted to round this curve, and that it then had the appearance of being at a standstill. Other witnesses described the car. before rounding the curve as proceeding very slowly, and that the speed of the car was suddenly increased while rounding the curve. If the car was on Tenth avenue below the curve when the boy started to cross the track and then suddenly increased its speed and ran over him before he could get across, the motorman making no effort to stop the car or avoid the injury, there certainly would be evidence of the defendant’s negligence. On the other hand, the defendant presented evidence which tended to show that this boy, playing in the street, started to run across the track as the car was rounding the curve, and either ran into the car or was struck as he got upon the track under conditions which, if believed, would exonerate the defendant from liability.

The exception which requires us to reverse the judgment was taken to the refusal of the court to charge a request añade by the defendant. The court had charged the jury : If you determine then, that the testimony of the plaintiff’s witnesses is true — that the plaintiff, using reasonable care for a boy of his years, attempted to cross this crosswalk at Fifty-ninth street and Tenth avenue; that the defendant’s motorman caused its car to go so fast at that point that he could not control it until the car went over the boy, and that his parents were not negligent in allowing him out in the daytime, unaccompanied; or if you find that he was in law able to take care of himself, that no act of his, considering his age and intelligence, contributed to-the happening of the accident ■—in that event your verdict will be for the plaintiff. For I charge you, gentlemen, that the failure of the defendant’s motorman to have the car under control at this crosswalk would, unexplained, constitute negligence on the part of the defendant.” This charge was not excepted to. If it had been, it would have been clearly error, as it is not the rule that proof of the motorman’s failure to control the car at a crosswalk as a matter of law entitled the plaintiff to a verdict. The jury must find the defendant or its agents guilty of negligence, and assuming that these facts, if proved, would be sufficient to sustain a finding of negligence, the court was not justified in instructing the jury that if such facts were proved, the plaintiff was as a matter of law entitled to a verdict. There was, however, no exception to this charge, and we are not, therefore, justified in reversing the judgment upon that ground.

After this charge was delivered, counsel for the defendant asked the court to charge : “ If the plaintiff was struck by a car as soon as he stepped upon the track, his own. negligence contributed to his injury and he cannot recover,” which was declined and to which the defendant excepted. I think that in view of the charge as delivered the defendant was entitled to have the jury so instructed. Assuming that the general statement of the plaintiff’s witnesses was correct as to the position of the car just prior to the accident when the plaintiff started to cross the street, still the jury could have found from the testimony that as this plaintiff stepped on the track he was just in front of the car and in such a position that it would have been impossible for the motorman to stop .it before striking the' plaintiff. ■ The plaintiff testified that he was- in'the middle of the track between the two rails when he was struck, and ■ at least two of his witnesses testified that he was between the first rail and the slot in the middle of the track. Mrs. Wright, a witness for plaintiff, testified that the front of the car was about seven feet six inches from the crosswalk, coming very fast, when the plaintiff was in the gutter-; that the plaintiff was just stepping on the track when he was struck; and a witness for the defendant testified that plaintiff ran in front of the car as it came around thé. curve.

If that was the situation the plaintiff certainly wquld not have been entitled to recover, as the negligence to sustain a recovery in this, case must be based upon the fact that the motorman failed to stop the car when the plaintiff was either upon- the track or in such -a position that if the motorman had been attending to his duty he must have noticed that the plaintiff intended to cross. But if the plaintiff did start to cross when the car was close to him — so close that the motorman could not stop the car before striking him — there was then no evidence to justify a verdict. Nowhere in the charge is the attention of the jury called to this condition, and yet the jury might from this evidence have found that the plaintiff stepped upon the track immediately in front of the car under such, circumstances that the motorman' could not stop the car before striking him. I think, therefore, that this exception requires us to order a new trial.

The judgment and order are reversed, and a new trial is ordered, with costs to the appellant to abide the event.

Van Brunt, P. . J., concurred; Patterson and O’Brien,. JJ., concurred in result for the reason stated by Judge Hatch.

Hatch J. (concurring):

I am-of opinion that the. evidence in this case presented a question of fact for determination by the jury, and that the verdict, finds support in the evidence. I concur in the reversal, however, for the error in the charge as pointed out by Mr. Justice Ingraham.

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