
    Grace McDonald, as Administratrix, etc., of John F. McDonald, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—a charge that the degree of eme required was such “asa hog of his age and of good intelligence would exercise under the circumstances and deem adequate thereto ” is erroneous.
    
    In an action brought to recover damages for the negligent killing of a boy, a charge that “It was the duty of this boy to exercise such care and prudence to avoid an accident as a boy of his age and of good intelligence would exercise under the circumstances and deem adequate thereto,” constitutes error, as the degree of care imposed upon the deceased was such as a reasonably prudent person, of the .same age, would have exercised under the same or similar circumstances, and the charge, as made, substituted for such care a mental process on the part of the deceased in reaching a conclusion as to what he deemed to be adequate care.
    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 January, 1902, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 22d day . of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Oha/rles F. Brown, for the appellant.
    
      Edmund L. Mooney, for the respondent.
   Hatch, J.:

The plaintiff seeks in this action to recover damages for the negligence of the defendant in causing the death of plaintiff’s intestate. It is not essential that we call attention' to the facts of the case for the reason that they are in all substantial respects the same as when the case was before this court upon a former appeal. In the first trial a verdict was directed by the court in favor of the defendant and, upon appeal, this court affirmed the judgment entered thereon (46 App. Div. 143), holding that the evidence was insufficient to support a recovery; and as a verdict would not have been sustained in favor of the plaintiff, the court was authorized to direct it. Upon appeal to the Court of Appeals (167 N. Y. 66), that court held that the trial court could not, in any case where the right of trial by jury exists, direct a verdict if the evidence in the case presented an actual issue of fact; that the only power possessed by the court, if dissatisfied with the verdict of the jury, was to set it aside and grant a new trial before another jury. We do not now feel called upon to carefully scrutinize this testimony in order to determine whether or not it be against the weight of evidence. We reach the conclusion that a new trial must be granted for error committed in the charge to the j ury. The court charged: It was the duty of this boy to exercise such care and prudence to avoid an accident as a boy of his age and of good intelligence would exercise under the circumstances and deem adequate thereto.” As we construe this charge, it was left for the jury to determine whether the degree of care which the deceased exercised was such as he deemed adequate, and if so, it answered the requirements of the law. Such is not the rule. The degree of care imposed upon the deceased was such as a reasonably prudent person of the same age would have exercised under the same or similar circumstances. The charge as made, however, substitutes for such care a mental process on the part of the deceased in reaching such conclusion as to what he deemed to be adequate care. Clearly such is not the rule. If it were, every act of the party would be sustained, as such action would necessarily involve the degree of care deemed by him to be adequate in committing the act.

It is said, however, that no exception points out this error. We think the contrary clearly appears. Counsel first excepted to that portion of the charge after the definition of “ legal negligence.” This part of the charge followed that to which we have called attention. Counsel then excepted to the language of the court with respect to the degree of care imposed upon the boy.” This was a specific exception to the language in which the degree of care to be exercised by this boy was charged, and it finds precise application to that portion of the charge which we deem to be error. This error was not cured by anything subsequently contained in the charge. The court did define what constituted reasonable care and said that it required a vigilant use of the senses, and that if there was- an omission of this care or duty on the part of the deceased and it contributed to the accident the jury should find for the defendant. But this did not modify or exclude from consideration by the jury that the vigilant use of his senses was to be measured in operation by the care which the deceased deemed adequate for his protection. It follows, therefore, that the court committed reversible error, to which an exception was properly taken. - In consequence of which the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

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