
    John Fullerton, an Infant, by Phoebe Ann Fullerton, his Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—a request to charge matter, already in spirit and substance presented to the jury—a plaintiff, non sui juris, may show the death of his father and his mother's bad health.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of being run over by one of the defendant’s electric street cars, in which the evidence is conflicting as to the speed at which the car was traveling at the time of the accident, and as to whether the presence of an ash cart in the street obstructed the motorman’s view of the plaintiff, the refusal of the court to charge, “ other than as I have already charged,” the following request of the defendant’s counsel, “If the jury find from all the evidence in this case that the defendant’s car was being managed with ordinary care, and was run at the ordinary speed of electric cars, lawfully authorized to be operated in the streets of this city, and that the approach of the plaintiff towards the track was not observed by the motorman in consequence of the presence of an ash cart on the right-hand side of the street, then the plaintiff cannot recover, and the defendant is entitled to a verdict,” does not constitute error where it appears that there was no evidence to show what was “the ordi nary speed of electric cars, lawfully authorized to be operated in the streets of this city,” and that the court in other portions of its charge placed the spirit and the substance of the request before the jury.
    Ingraham, J., dissented.
    
      Where it appears that the plaintiff in the action was non sui juris at the time of the accident, evidence that his father was dead and that his mother was in a j poor condition of health at that time, is competent as hearing upon the subject of the contributory negligence of the plaintiff’s parents.
    Van Brunt, P. J., dissented.
    . 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 21st day of November, 1900, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the ■ 30th day of November, 1900, denying the defendant’s motion for a new trial made upon the minutes. '
    
      Charles F. Brown, for the appellant.
    
      Ed/wa/rd A. Sumner, for the respondent.
   Patterson, J.:

This is an action to recover damages for personal injuries sustained by an infant non sui juris through the alleged negligence of the defendant’s servant under the following circumstances :

On the 3d of Augustj 1897, the child strayed from the apartment in a tenement house in which he lived with his mother at the southeast corner of East One Hundred and Sixteenth street and Park j avenue in the city of New "York. Before leaving the house he had been playing in a room in which his mother had left him, the door -of which room was closed with a catch lock, but, in some undisclosed way it was opened so- that the child wandered from the room into' the street. While playing with some other children he attempted to cross East One Hundred and Sixteenth street, opposite the house No. 122, a distance some 300 feet east of Park avenue. While upon the southerly track the child was struck by one of the defendant’s cars and received injuries which necessitated an amputation of one of his legs and two toes of the remaining foot. In front of the premises No. 122 East One Hundred and Sixteenth street, when the boy left the sidewalk, there was standing an .ash cart -a little to the east of- the point at which the boy left the sidewalk. . The car which struck him had comé down Park avenue and. turned the corner int-o One Hundred and Sixteenth street. As it came along the street, two of the witnesses testified, it.was proceeds ing at a very rapid rate of speed, one of them fixing ’t at eighteen miles an hour, another at about nine miles. Testimony on behalf of the plaintiff locates the car from 100 to 125 feet distant.from the boy when he was first observed upon the track. The defendant’s theory, testified to by the motorman, is that the plaintiff was not seen until the car was within about 6 feet of him; and the suggestion is that the position of the ash cart was such that the motorman could not see the. boy as he was leaving the curb. There was evidence to, support the claim of negligence of the motorman. One of the witnesses for the plaintiff testified that the car was proceeding at a very rapid rate and was at the distance of from 100 to 125 feet from the hoy when a woman in the second story of the house No. 122, seeing the child was in danger, screamed ; thereupon, accord-, ing to the testimony of this witness, the motorman slackened the speed of the car and looked up to the window of the house No. 122 where the woman was standing, and then some one inside the car screamed, and the motorman looked back into the car and, as he did so, let go the brake, and the car moved rapidly ahead again; then the motorman, apparently seeing the child, put on the brake and stopped the car after it had run over the .child.

The negligence attributed to the motorman is apparent, if the jury believed the testimony of the plaintiff’s witnesses, which they evidently did. Had the motorman been attentive and looked before him, according to the plaintiff’s theory, which the jury.have adopted, he could not have failed to see the hoy, and his carelessness while running the car through the street at such a high rate of speed', even if it was limited to nine miles, was sufficient to authorize the jury to find for the plaintiff on the issue of negligence of the defendant. There was a sharp conflict on that issue, but the whole testimony was submitted to the jury in a very clear, fair and instructive charge of the learned judge who presided at the trial. .

That charge has been the subject of some criticism by the appellant, who argues that while it is “ an excellent review of the testimony and a clear statement of the questions to be decided by the jury, yet it is defective in that nowhere did the learned judge instruct the jury as to the legal effect of their conclusion upon the facts.” There is no exception taken- in the record to the failure of the judge to state to the jury the legal effect of the facts as they might find them. The issues presented and the obligation of the plaintiff to sustain the burden of proof upon those issues, and a review of the testimony bearing upon them, were very plainly stated to the jury, who certainly knew what was before them for j determination and what the necessary legal result of their- conclusion upon the evidence must be. But the criticism referred to is made to give enforcement to the contention that the learned judge should have charged a request for an instruction to the jury in the following words: “ If the jury find from all the evidence in this ; case that the defendant’s car was being managed with ordinary care, j and was run at the ordinary speed of electric cars, lawfully authorized to be operated in the streets of this city, and that the approach of the plaintiff towards the track was not observed by the motorman in consequence of the presence of an ash cart on the right-hand side of the street, then the plaintiff cannot recover, and the ¡ defendant is entitled to a verdict.” In answer to this request the : court said, I decline to charge other than as I have already charged.” i

The appellant insists that it was entitled to this specific instruction. Upon a careful consideration of the main charge and of the disposition made by the learned judge of other requests for instructions made by the appellant, we think no error was committed to the prejudice of the appellant by the refusal of the court to give j the specific instruction now under consideration. It might be suffi- ¡ cient to say that it was properly refused because it embraced in combination various propositions, and that one of them had no foundation in the proof. There was no evidence to show what is the ordinary speed of electric cars, lawfully authorized to be operated in the streets of this city,” and the trial judge might very j well have declined to consider the request upon that ground. But j passing that as perhaps being altogether .technical, we find that the ■ court instructed the jury as follows : “ The duty of the motorman was to manage his car in a reasonably prudent and careful manner, having in view all the conditions which surrounded him at the par- ¡ ticular place _ where he was. It was his duty to keep his car under | reasonable control, so that he could manage it with sufficient prompt- ,j ness to stop it promptly, if occasion arose to do so. And while , there must be conceded to vehicles of this kind a right to run at a considerable rate of speed, yet that rate of speed must in all cases be such as is reasonable and safe in view of the correlative rights of persons upon the streets. As I have already said, the rate of speed then becomes an important factor in this case; and it is for you to determine what that speed was and whether or no the motorman, in view of all the surrounding circumstances,, acted as a prudent and careful person in permitting his car to attain that rate of speed.” That was a correct statement of the law applicable to the case, and was equivalent to that much of the request under consideration as related to evidence that the defendant’s car was being managed with ordinary care. But the court, at the request of the defendant, also charged the jury as follows : “ If the jury find from the evidence in this case that the motorman in charge of defendant’s car, as soon as he saw or ought to have seen the peril of the child, applied the brake and used his best efforts to stop the car, and that said car was stopped as soon as the same could have been done by the exercise of ordinary care under the circumstances of the case, and having reference to the descending grade on which the car was running, then the plaintiff cannot recover and the defendant is entitled to a verdict.” Here again is an instruction which from the condition of the record we must assume was given to the jury (for there is no exception to its not being charged and no claim has been made before us that it was not charged), which stated a proper rule as to the duty of the motorman. The term of the request which refers to the ash cart is fairly included in that portion of the main charge which refers to the testimony of the man in charge of the cart, to the effect that the boy ran out from behind the cart and just as he got to the edge of the rail the car came down and struck him.

Thus the spirit and substance of the refused request were put before the jury, and the trial justice Was not bound to accept a formulation of a charge from the defendant’s counsel, provided he laid before the jury, as he did, a proper rule of law, including in substance those elements which were contained in the refused request.

It is urged by the appellant that the court erred in allowing testimony that the plaintiff’s father was dead and that his mother was in a poor condition of health. It is suggested that that testimony was offered and had the tendency to excite the sympathies of the jury as in the case of Lipp v. Otis Brothers & Co. (161 N. Y. 559). But the testimony was legitimate and was properly received as bearing Upon the subject of the contributory negligence of the parents of the child. He being non sui juris and not responsible for negligence, it was necessary for the. plaintiff to show that his parents had not been remiss in their care of the child. The duty of looking after the child would have been incumbent, not upon one parent, but upon both. It was, therefore, proper to show that the father was dead, and it-was also.permissible to. show that the mother was in such a condition of health that she could not bestow upon the child more care than she did exercise when she left liim, as she supposed, in a secure position in one of the rooms of her ajiartment. All this testimony was directed to relieving the parents of the child from the imputation of negligence on their part, and the case is,'therefore, unlike that of Lipp v. Otis Brothers & Co. (supra), where the only possible objectof such testimony as is there considered was, as pointed out in the opinion'of the Court of Appeals, to excite the sympathy of a jury because of the poverty of those dependent for support upon the person whose death was the subject of the inquiry in that action.

The case before us requires no further consideration upon any of the exceptions presented, and in view of the grave injuries this child has sustained, we cannot say that, the damages awarded by the jury are excessive.

The judgment and order appealed from should be affirmed, with costs. .

O’Brien and Laughlin, JJ., concurred; .Van Brunt, P. J., and Ingraham, J., dissented.

Ingraham, J. (dissenting):

1 dissent. The negligence of the defendant seems to be predicated chiefly upon the speed at which the car was running at the time of the accident. - The testimony of the witnesses for the plaintiff as to the speed of the car varied considerably — one testifying that its speed was eighteen miles an hour while another said it was going very fast, about nine miles an hour — the case showing the usual confusion which obtains when witnesses undertake to fix the speed of a moving vehicle in the street. Upon this testimony the question as to the speed of the car' was a fact' for -the jury, and I think the defendant was entitled to have the jury instructed, as requested by its counsel, that if they should find from all the evidence that the defendant’s car was being managed with ordinary care and was run at the ordinary speed of electric cars lawfully authorized to be operated in the streets of the city, and that the approach of the plaintiff upon the track was not observed by the motorrnan in consequence of the presence of the ash cart on the right-hand side of the street, then the plaintiff cannot recover.

The phrase, “run at the ordinary speed of electric cars, lawfully authorized to be operated in the streets of this city,” clearly means the ordinary speed at which it was prudent to operate such a car in this locality. It is sought in the prevailing opinion by adding-together detached portions of the charge with other requests of the defendant which were charged to show that this request was substantially complied with. But I think in this case the defendant was entitled to have presented to the jury the concrete statement of the conditions which would require them to find a verdict in its favor, and the refusal to charge this specific request was. I think, reversible error.

Judgment and order affirmed, with costs.  