
    Hamilton A. Moore, by next friend, Hamilton O. Moore, vs. The Metropolitan Railroad Company.
    Law. No. 23,789.
    
      < Decided May 31, 1883.
    1 TAe Chus? Justice and Justices BA&neu and Cox sitting.
    1. Even though the evidence for the plaintiff was insufficent to make out a prima fade case, this court will not sustain an exception to the refusal of the court below to so instruct the jury, if it appear that the defects of the plaintiff’s ease were afterwards supplied by the evidence offered by the defendant.
    2. A general exception to the granting of prayers is irregular. The party objecting should except specially to the granting of each prayer.
    3. So, too, with the charge; the unobjectionable parts should be segregated from that which is objectionable and the latter excepted to specially.
    4. If a parent sues for the loss of services of a child by reason of injuries resulting from the defendant’s negligence, contributory negligence on the part of the parent is a complete defence; but it is otherwise if the child sues by the parent or any other next friend.
    5. What would be contributory negligence in an adult, may not be such in the case of a child of tender years; the caution required is according to the maturity and capacity of the child, and this is to be determined by the circumstances of the ease.
    6. The question whether the capacity of a child is such that he can be charged with contributory negligence is one of fact which must be determined by the jury.
    7. Though the evidence of negligence may be slight, and though it may have affected the court differently from the way in which it affected the jury, the court may not feel at liberty to say that there was not sufficient to go to the jury.
    8. The respective obligations of street railway companies, and of persons, (including children) crossing the railway tracks declared in the instructions given to the jury by the court below and approved by this co urt.
    STATEMENT OE THE CASE.
    The plaintiff', an infant of about seven years, brought this action by his father, as next friend, against the defendant, a street car company, to recover damages for injuries sustained by reason of being run over by one of the defendant’s cars. At the trial, the jury rendered a verdict in favor of the plaintiff’ for $5,000, and the case embodying in the record all the testimony, the substance of which is stated in the opinion, came to the General Term on a motion for a new trial on exceptions.
    The first exception was to the refusal of the court to instruct the jury that upon the whole evidence offered in behalf of the plaintiff the plaintiff was not entitled to recover.
    The second and third exceptions were not pressed. The fourth exception, containing the three prayers of the plaintiff, which were granted by the court, was in the form following :
    
      “ The plaintiff' thereupon prayed the court to instruct the jury as follows:
    “ 1. The law requires of the defendant the exercise of reasonable care and caution in running its ears over and across the streets in this city, in order to avoid injury to persons upon the streets; and if the defendant, or its agents or servants, by the exercise of reasonable care, could have prevented the injury to the plaintiff, then the plaintiff is entitled to recover, unless you should further find that the plaintiff was himself guilty of negligence contributing to his injury.
    “ But in considering the question of the plaintiff’s negligence, he is only to be held responsible for the exercise of such judgment, prudence and discretion as is natural to and to be expected from a boy'of his age.
    “ 2. If the jury find from the evidence that the defendant, its agents or servants, by the exercise of reasonable and proper care, could have prevented the injury to the plaintiff, then in order to prevent liability, the burden of proof is upon the railroad company to prove that the plaintiff was guilty of failing to use such degree of ordinary care and prudence as would naturally be expected from a boy of his age, which contributed to his injury.
    “ 3. If the jury find for the plaintiff, in estimating the damages, they are to consider the health and condition of the plaintiff before the injury complained of, as compared with his present condition in consequence of said injury, and whether the said injury is in its nature permanent, and how far it is calculated to disable the plaintiff from engaging in those industrial pursuits and employments for which, in the absence of such injury, he would be qualified ; and also the physical and mental suffering to which he was subjected by reason of said injury, and to allow such damages as in the •opinion of the jury will be a fair and just compensation for the injury which the plaintiff' has sustained.
    “And the court thereupon granted said prayers, and each of them ; and to the granting of said prayers, and each of
    them, the defendant then and there, and before the jury retired, excepted, and prays the court to sign and seal this its fourth bill of exceptions ; which is done accordingly, now for
    then, this 13th day January, A. D. 1883.
    “Arthur Mac Arthur, [Seal.]
    “ Justice.”
    
    The fifth exception was to the refusal of the court to grant the defendant’s fourth prayer which was as follows :
    “'If the jury find from the testimony that, at the time of the accident described in the declaration, the plaintiff'was a child seven years of age, and was allowed by his father, who sues as the next friend of said child, to play in the street in which the defendant’s tracks are situated, and the said child ran in the way of car No. 50 in a manner which amounted to negligence, and in consequence thereof received the injury complained of, and that the driver, as soon as he perceived said child, endeavored to stop said car, but was unable to do so in time, and -was not negligent in the management of said car, the plaintiff' is not entitled to recover.”
    The sixth exception set out the judge’s charge and concluded as follows :
    “ To which said instruction, and every part thereof, the defendant, by its attorney, then and there, and before the jury retired, excepted, and prays the court to sign and seal this its sixth bill of exceptions ; which is done accordingly, now for then,” &c.
    The charge of the court was as follows:
    “ The party injured in this case was a child seven years of age, and that is a circumstance which naturally affects the •case, because the same degree of judgment, prudence and caution is not to be expected from so young a person as-would be required from an older maturer person. With regard to grown-up persons, they must be free from negligence-in order to recover — that is called ‘ contributory negligence.’" It is somewhat different in regard to a child. The law adapts itself to the condition and age of the party injured. In this case, if the child was exercising that degree of care that would be expected from one of that age, and was in jured by the negligence of the defendant, he is entitled to-recover.
    “The liability here depends upon the circumstances of the case. I have been asked to instruct you as to the burden of proof. The burden of proof is rather an abstract proposition ; but so far as the defendant is concerned, the law imposes upon the company with regard to a child the necessity of exonerating their conduct from negligence, and of showing that the child was guilty of that degree of negligence which will relieve them from responsibility. Now, I- have no doubt that if this accident oecurred from the negligence of the defendant, or its agent — and when I speak of the defendant I speak of anything that is done by its agents, or suffered by its agents to be done — if the injury occurred through want of proper care and caution, the plaintiff' would be entitled to recover, unless the defendant in addition shows that from the circumstances of the case the accident was inevitable, or that the child was not exercising that degree of care for which he was responsible as a child. If the accident was inevitable, the child must bear the burden of it; that is if the proper care and prudence of the plaintiff' could have prevented its occurrence, then the plaintiff would be responsible. So that, so far as the burden of proof is concerned, you will consider all the circumstances of the case, and if, upon the whole testimony, it appears to you-satisfactorily that within the rules I have just laid down the defendant, or the company, has successfully sustained their part of the issue, they are entitled to your verdict.
    “There are-one or two particular features in the case to which my attention is called, and your attention is called by the instructions. I have stated, I think, fully the grounds upon which I think the plaintiff is entitled to recover, and the principles of law which he has claimed should be given to the jury in his written instructions. The defendant, however, requests me to state to you as matter of law, that if this child ran upon the track in such a sudden manner that by the exercise of proper caution and care there was not time to stop the cars or the horse, the company is not responsible. That is undoubtedly true, and I do not understand that principle to be controverted on the other side.
    “ The other point to which particular attention is directed is, if the boy was running after the car which was going north, and was in the act of stepping upon, the rear platform, when he instantly abandoned it and got out upon the track before there was time to stop the car which was going in'the opposite direction, that would be a complete defence here. And I think it would. Now, while a child is to be held responsible only for such care and caution as is suitable to its age, an act of that kind is a mischievous one; and while children are exempt from the responsibility of a grown-up person, they are still responsible for mischievous conduct; and if a child does an act of that kind, and in doing so, without the fault of the other side, receives an injury, it is an injury which the child incurs under circumstances which render the other party harmless so far as an action at law is concerned.
    “ Now, something has been said about these children playing on the street. Well, we know that children do play upon the street, and it goes to illustrate the kind of capacity and judgment a child has ; and when we see children playing upon the street, therefore, where there is no danger to apprehend, it looks just like an act that a child would do ; it looks just like conduct that is common to most of children. When a railroad is running through one of the public thoroughfares of the city, it is the duty of parents to look after their children, and for their own sake to keep them as much as possible away from a playground upon the railroad ; and the parent who neglects this duty incurs sometimes a fearful responsibility afld exposes his own child to very great risks. Still, a railroad that runs through the public streets of the city has not the exclusive right to their occupancy and use. They have only the use of the street for the purposes of their road, and all the other citizens, including men, women and children, have a perfect right to use the street. They are required, however, to exercise such care and caution as will protect themselves from the use of the street by machinery of this description, and they are not to run under the horses’ feet or under the cars; they are called upon to exercise their sight and hearing and their powers of locomotion, and if they neglect in this respect they take the risk upon themselves ; but you will bear in mind the qualification which I have just stated in this connection with regard to children. Therefore, while children are upon the street they are in the exercise to some extent of a legal right, and I would be very loath to lay down the proposition that children may not use the street for playing occasionally. As was stated by one of the counsel, it is very much the only place they have in close cities, although in this city, such are the admirable arrangements — there are large circles and squares almost everywhere — that children can enjoy some freedom; and when they are permitted to roam upon the street they usually romp and become boisterous and acquire habits which perhaps children would be better without; but after considering all these things as matters of social propriety, there is left the broad doctrine that all persons may occupy these streets, subject of course to the exercise of caution, and subject to the other use to which the street is appropriated, and if they do that they are within the protection of the law. If, however, they do not exercise that degree of care which is imposed upon children in the case of an injury, or upon adult persons in the case of an injury, and come to grief, they must bear the consequences.
    “ Now, I think that I will give you just what I have been saying to you on this topic in the place of the last instruction which has been asked for on the part of the defendant, and I think this disposes of all that is necessary for the court to say.”
    
      Mr. Mattingly : “Before you honor leaves that point, I will ask your honor to state the correlative duty of the railroad company using the street. That they have to adapt their use to the habits of children.”
    The Court “Well, I supposed that was implied. The streets have to be used by citizens, subject to the purposes for which they are occupied by the railroad company, and the railroad company must use it subject to the right of the citizens.
    “And this brings us to the question of damages — a question that is left, generally, to the jury, subject to some slight instructions from the court. In this case no vindictive damages are claimed, but simply the actual damage which has been sustained. There is no doubt that this child has suffered a very severe injury, perhaps one that will affect- his condition indefinitely, and perhaps, through life. That he must have suffered considerably is quite evident from the nature of the injury. You will consider the case and give him such damages as are proper in view of the circumstances and the injury. You will bear in mind that this is only a horse railway ; that it is not one of those gigantic corporations that wheel ponderous mechanisms through oar streets, but it is run by power that is quite controllable — -by horse power — and that it is so very controllable, is evident from the fact, which does not appear to be disputed in this case, that the car was stopped before it. had time to pass the length between the two wheels — almost instantly. And, upon the whole, you are not expected to give damages against this compauy by way of making an example of them; but you are just to compensate the plaintiff in a reasonable amount. On that subject I simply ask you, gentlemen, to be reasonable in regard to your verdict, because it is only reasonable verdicts, after all, that are satisfactory ; and sometimes when they are excessive they not only create dissatisfaction, but embarrassment in the subsequent proceedings in the case.
    
      Mr. Wilson: “Your honor omitted, unintentionally, a qualification : whether or not they are to award any damages depends upon whether or not they find the defendant was guilty of negligence.”
    The Court : “ Oh, yes, I imagined that you find in favor of the plaintiff'. If you find that the railroad company were not at fault, you will return a verdict for the defendant.
    “You may retire, gentlemen.”
    Mr. Wilson : “ I except to the charge and every part of it.”
    Wm. F. Mattingly and Frank T. Browning for plaintiff.
    Nathaniel Wilson for defendant.
   Mr. Justice Cox

delivered the opinion of the court.

This was an action by the plaintiff, an infant of tender years, by his father, as next friend, to recover damages for an injury suffered by being thrown down and run over by a car of the Metropolitan railroad line. At the trial, after the testimony for the plaintiff was closed, counsel for the defence asked the court to instruct the jury to render a verdict for the defendant, on the ground that the evidence did not make out a prima, facie case of negligence on the part of the defendant company. The instruction was refused, and that is the subject of the first exception. In the course of the trial several other exceptions were taken, one or two to the admission or exclusion of evidence; one to the rejection of a prayer for instructions by defendant; one to the granting of a prayer by the plaintiff' for instructions ; and, finally, one to the charge ; but the only one on which stress was laid in the argument was the first, and that brought before the court simply the question whether the evidence introduced into the case was sufficient to make out a prima facie case to go to the jury, and whether the court ought not to have told the jury that there was not sufficient evidence upon which to find a verdict for the plaintiff. It should be remarked here that, even if the evidence for the plaintiff is, of itself, insufficient to make out a prima facie case, yet if any defect in it is supplied by the evidence offered after-wards by the defendant, the plaintiff is entitled to the benefit of that, and the error of the court, if there was error, in refusing an instruction such as was asked in this case, would thus be cured by the defendant’s own act. Therefore, the question can be considered fairly only in the light of all the evidence introduced into the case, and it must appear that the whole of the evidence offered by both sides did not present sufficient facts to make a prima facie case to go to the jury, before the decision of the court can be reversed for the refusal to give the instruction prayed. Now, in this case, the evidence on the part of the plaintiff was in substance that on the occasion in question a car, numbered 50, belonging to this defendant, had just turned from Missouri avenue into Four-and-a-half street, to go down towards the Arsenal, and, about halfway down that square, met, coming up, car number 15 ; that the plaintiff, a child about seven years of age, undertook to cross the track, and did cross, before car No. 50, but, through some accident, struck against the horses of car No. 15, which was coming up, and by that contact or collision with those horses, was thrown between the horse drawing car No. 50 and the front axle of the car ; that that wheel passed over his legs, and that the driver arrested the car barely in time to prevent the hind wheels also from going over him. The testimony tended clearly to show that car No. 15, which was running north, was going at a very rapid speed, in order to make up lost time, and that car No. 50 was going slowly, but that the driver was not looking ahead but was conversing with some one in the car, and, consequently, that his face was turned around towai’d the car. It further appears that as soon as the boy fell and the car ran over him, the driver of car No. 15 exclaimed to the other one: “ That’s what you get by not looking out.”

Perhaps the only facts material to the case contributed by the evidence for the defence (of which facts the plaintiff is entitled to avail himself) are, that this place had been a sort of a play-ground for boys ; that they had been in the habit of jumping on and off the cars, and that on this occasion the two drivers both saw the boys playing in the street. One of the drivers says he saw the boys, but did not know whether they were playing or not.

Now, it is argued on the part of the plaintiff', that the driver of car No. 60 was negligent in not keeping a proper-lookout. Further, a witness for the plaintiff testifies that he gave the alarm as soon as he saw the boy fall, and attracted the attention of the driver to the boy, so that the driver at once checked the car and prevented the hind wheels from running over him ; from which it is argued'that if the driver had been keeping a proper lookout he would have seen the boy in time to prevent even the fore-wheel from running-over him. It is claimed also that the driver of car No. 16, coming up, was negligent in travelling at an unusual speed, at a point where he would meet another car, and where there was more than ordinary danger because of the presence of, these boys playing, he having full knowledge that they were in the habit of playing there, and that children were present there on this particular occasion. The question is, whether these facts constitute sufficient evidence of negligence on the part of the defendant to go to the jury. Two cases somewhat analagous to this one have been cited. One of them is that of Railroad Company vs. Gladmon, 14 Wall., 401. A car was running along Bridge street, while some boys were playing there, and one of them suddenly undertook to cross, and was thrown down and had his knee-pan torn off by the wheel. One witness, Mr. Hill, testified that the driver was not looking forward, but was conversing with some one alongside of him, and that if he had been keeping a proper lookout he could have checked the car in time. It did not seem to have occurred to the court in that case, any more than in this, that there was not sufficient evidence to make out a prima facie case. The case went to the jury, and they rendered a .verdict for $9,000. I forget whether it was attempted to have the verdict set aside on the ground of insufficient evidence. At all events it was not done.

Another case cited was that of R. R. Co. vs. Stout, 17 Wall., 657. In that case it appeared that the railroad company which was sued (the Sioux City & Pacific Railroad Co.), owned a turn-table which was situated on its own premises entirely, but was unenclosed, and adjacent to two public roads. A little child wandered away from its home, three quarters of a mile distant, strayed into this place, got to playing on the turn-table, and had his foot crushed. The company -was sued and certain instructions were asked, but the question really presented was whether there was sufficient evidence from which the jury could infer negligence on the part of the defendant. It appeared from the evidence that children had been in the habit of playing there, and had been several times warned oif by the railroad émployees. The court said that the mere fact that children had, played there before was sufficient to give notice to the company that there was danger of their coming there again, and the fact that an injury did actually happen there was sufficient evidence to go to the jury that the condition of the turn-table was dangerous ; that these facts constituted notice to the company that the place was dangerous, and that there was a possibility of children being injured there, and that this, with the fact that the child in question was injured, was enough to make a case to go to the jury. The court says : That the turn-table was a dangerous machine, w'hich would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury by his foot being caught between' the fixed rail of the road-bed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents. So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turn-table on other occasions) within the observation and to the knowledge of the employees of the defendant, the jury were justified in believing that children would probably resort to it,' and that the defendant should have anticipated that such would be the case.”

It may be said in this case, by parity of reasoning, that the fact that children had been in the habit of playing at this identical spot, was a warning to the agents of this defendant, that children ■ might on other occasions be found playing there, as they were on the occasion in question, and that the fact that an injury did happen from the meeting of two cars at that point was sufficient evidence that every occasion of the meeting of cars at this point where children were in the habit of playing, was an occasion of danger. In the case of the Railroad Co. vs. Stout, the court says : “ The evidence is not strong, and the negligence is slight; but we are not able to say that there is not evidence sufficient to justify the verdict. We are not called upon to weigh, to measure, to balance the evidence, or to ascertain how we should have decided if acting as jurors.” We think we must entertain the same view in reference to this case. Though i the evidence of negligence may be slight, and though it might have affected us differently from the way in which it ! affected the jury, we cannot feel at liberty to say that there j| was not sufficient evidence to go to the jury. If this had been the case of an adult we should have little difficulty in holding that there was sufficient contributory negligence on his part to defeat a recovery; but we cannot say so in regard to a minor child of tender years. There is hardly any set of circumstances which a court can say, as matter of law, amount to contributory negligence on the part of such a plaintiff' as that. It is always finally, a question of fact whether the capacity of the child is such that he can be charged with contributory negligence, and as a question of fact, it must necessarily be submitted to the jury for determination.

There was no argument addressed to the court upon the other exceptions, and it is hardly necessary to discuss them at any length; but one or two of them will be briefly noticed. There were three prayers asked on the part of the plaintiff, none of which seem to ns to be objectionable. The counsel for the defence, apparently as a matter of precaution, excepted generally to the granting of those prayers. The exception itself is not exactly regular, because it does not except specially to the granting of each prayer. However, I do not think it is necessary to notice those further.

The defendant asked four instructions, one of which was refused. The one refused was as follows :

“ If the jury find from the testimony that, at the time of the accident described in the declaration, the plaintiff was a child seven years of age, and was allowed by his father, who sues as the next friend of said child, to play in the street in which the defendant’s tracks are situated, and the said child ran in the w’ay of car No. 50 in a manner which amounted to negligence, and in consequence thereof received the injury ■complained of, and that the driver, as soon as he perceived said child, endeavored to stop said car, but was unable to do ■so in time, and was not negligent in the management of said •car, the plaintiff' is not entitled to recover.”

That embodies two propositions. The first is that if the parent of the child was negligent, that negligence is to be ■charged to the plaintiff, and that that, with other facts, is to be considered by the jury as a defence. Now we do not understand the law to be so. If a parent sues for the loss of services, contributory negligence on the part of the parent is a complete defence; but if the child sues, by the parent or any other next friend, it is no defence.

The next proposition is decidedly faulty. It puts the question of the child’s negligence to the jury, and states that the child’s negligence is to be estimated without reference to his capacity. The Supreme Court held in the Grladmon case that the jury must be instructed that the negligence imputable to a child must be estimated with reference to his tender years ; that the caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.” This part of the instruction, omitting that qualification, is therefore faulty, under the ruling of the Supreme Court.

There was a charge'by the court, which occupies some four-pages of the record, and the counsel for the defence except generally to it in every part. This is faulty in form ; because, while there is a portion of the charge that was objected to, there are other portions wholly unobjectionable, and a general exception which does not segregate the objectionable part is faulty in form. But we may say that even the part complained of is correct.

On these grounds, the motion for a new trial on the exceptions will have to be overruled.  