
    Catharine B. Martineau, as Administratrix, etc., Resp’t, v. Rochester Railway Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Municipal corporation—Ordinances
    An ordinance, authorizing the use of electricity as the motive power of street cars, was held not to supersede an existing ordinance relating to speed.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.
    
      Charles J. Bissett, for app’lt; Thomas Baines, for resp’t.
   Haight, J.

This action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate. The deceased was an infant, about 2£ years of age. She had a sister, May, of the age of 5 years. On the day of the accident the mother had been out with the children, and had returned to her residence on North avenue, in the city of Rochester. While still upon the walk, the children saw their father coming home upon the same side of the street. May screamed out, “Papa is coming ! ” and asked if she could take Irene, and go and meet him. The mother gave her consent. In the meantime the father had crossed the street to a meat market, and the children, hand in hand, started to cross after him. They crossed to the opposite sidewalk, and started along the walk towards the meat market. The father purchased some meat, came out, started to recross the street, without seeing the children. The children, evidently seeing their father recrossing the street, started to return, and in doing so Irene was run over and killed by one of defendant’s electric cars. Some evidence was given tending to show that the car was running at a very-high rate of speed—from 12 to 15 miles per hour—and that the motorman did not sound the gong until the moment of the accident, from which it is contended that the motorman was not properly discharging his duty in the operation of the car by keeping it under control, and looking out for persons approaching. Our examination of the evidence leads to the conclusion that the question of the defendant’s negligence was for the jury.

As to the mother’s contributory negligence, there may be more doubt. The deceased was non sui juris, and was under the care of her mother. She was permitted to cross the street attended by her sister only, who was a child of but five years of age; but the mother tells us she looked before giving her consent, and saw no car approaching. There was nothing else in the street to harm the children. They were going to meet their father, with whom they would have been safe. Although the facts may present a case upon a border line, we are inclined to the view that the trial court properly refused to hold that the mother was guilty of contributory negligence as a matter of law, and correctly submitted the question to the jury.

Upon the trial the plaintiff introduced in evidence an ordinance of the cornmon council of the city of Rochester, passed March 9, 1887. Section 4 provides as follows: “ The cars ;to be used on such railroad shall be drawn by horses or rnules ¡only, at a speed not exceeding the rate of seven miles per hou.r, and shall run, as often as once in every fifteen minutes between .the hours -of ¡six o’clock in the morning..and twelve o’clock ¡midnight,” .etc.

The ordinance contains numerous other provisions ,in reference to the operating of the street surface railroads in the city, which are not necessary to be here considered. An exception was taken by the appellant to the reception of this evidence. It is .contended on the part of the respondent that this ordinance is still in force, so far as the provision relating to speed is concerned; while on behalf of the appellant it is claimed to have been repealed by implication, or superseded. It appears from the proceedings of the council for the years 1889 and 1890 that an ordinance was passed giving the defendant-the right to establish, construct, maintain, operate, and use the overhead trolly electric system of motive power in the operation of its cars in and on all of the streets, avenues, and -public places in the city of Rochester along, through, and upon which the company lias constructed and is maintaining and operating a street surface railroad. The ordinance contains numerous provisions pertaining to the operation of tbe system,'among which we find the following: “It is further resolved that before this grant and consent shall become operative tbe said company shall deliver to and leave with said committee a written agreement to the city to accept, and in each and every thing and particular comply with each and all tlie provisions contained in these resolutions, and to well and truly at any and all times hereafter indemnify and protect the city of Rochester in tbe particulars and maguer specified in these resolutions, and to well and truly at all times comply with all the .ordinances and resolutions of the common council of said city not in conflict herewith which have been at any time heretofore or may at any time hereafter be proposed relating to the rate of speed, manner of running cars, general government or use of tracks, removal of ice, snow or dirt, and the general repairs of the street within and for two feet outside of and adjoining said company’s trade or tracks.”

In our examination of the new ordinance we find nothing that is in conflict with the provisions of the earlier ordinance relating to the speed at which cars should be run, and we think that it was not intended that the new ordinance should affect the provisipu of the old ordinance in this regard; for here, in the provision to which we have referred, we find certain things enumerated, such as the rate of speed, the manner of running cars, general government or use of tracks, the removal of ice, snow, or dirt, etc., as to which the company is required to agree with the city that it will at all times comply with the ordinances in reference, thereto “ which have been at any time heretofore or may at any time hereafter be passed.” We are aware that tbe earlier ordinance provides that tbe cars shall be drawn by horses or mules at a speed not exceeding tbe rate of seven miles per hour; and it is claimed on behalf of the appellant that the new ordinance permitting them to substitute the trolly motive power in place of horses and mules supersedes this provision of the old ordinance, including the rate of speed, but we do not so construe the provisions. The trolley motive power was permitted to be substituted in place' of the horses or mules. The speed at which the cars were to be moved was not changed or affected. We have examined the other exceptions appearing in the case, but find none which we think requires a new trial. The judgment and order appealed from should be affirmed.

, All concur.  