
    Palma Colabel, an Infant, by Francis Colabel, her Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—a charge that a “ motorman was not obliged to apply his brake before he observed that the child was in danger,” refused.
    
    In an action to recover damages for personal injuries sustained by the plaintiff, a child five and a half years of age, concededly non sui juris, in consequence of his being struck by one of the defendant’s street cars, while crossing a street in the city of New York, the court may properly refuse a request to charge that “ the motorman was not obliged to apply his brake before he observed that the child was in danger of being struck by the car,” as such a request eliminates the question whether the motorman was negligent in failing to discover that the child was in danger sooner than he did.
    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 30th day of January, 1902, upon the verdict of a jury for $3,800, and also from an order entered in said clerk’s office on the 11th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Morris Cukor, for the respondent.
   Laughlin, J.:

This is an action to recover damages for personal.injuries alleged to have been sustained by plaintiff through the negligence of the defendant. On the 3d day of August, 1901, plaintiff, who was then five and a half years of age and concededly non sui juris, was struck by a south-bound electric car on the defendant’s road at or near the intersection of Roosevelt street and Park Row, inflicting injuries the nature and extent of which are not in controversy¿

Park Row runs from Chatham Square southwesterly to Broadway. It is intersected from the southeast by Roosevelt street; and a little to the southeast of this intersection it is intersected from the northwest by Baxter street. Roosevelt street and Baxter street are each twenty-five feet in width, and the distance from the southerly line of Baxter street to the northerly line of Roosevelt street, measured along Park Row, is ninety-seven feet.

The defendant’s motorman testified, in substance, that as he was passing over the northerly crossing of Roosevelt street, it was down grade and the car was going six or seven miles an hour, with no power on; that he had the slack of the brake taken up and could stop his car within thirty feet; that at this time he saw the plaintiff and a larger child crossing ' Park Row from, his left to his right, diagonally from a little below the southerly crossing of Roosevelt street toward Baxter street; that the children seemed to be together and were running; that the larger child stopped on the up track, but the plaintiff kept on and stopped upon the track when the car was within three or four feet of her; that when he was on the north side of Roosevelt street and saw the children running from the curb across the street, he applied the brake as hard as he could; that the child might have been struck ten or twelve feet below the south crossing of Roosevelt street; that the car was stopped quickly and the child was picked up eight or ten feet, from the front of it.

The testimony of the motorman was not consistent. It was controverted by other evidence which tended to show that the plaintiff ' was running across the north-bound track, approaching the track on which she was struck, when the car was half a block or more than 100 feet away from her; that the car was proceeding at a very high rate of speed; that the motorman rang no bell and gave no warning and made no attempt to turn the brake or slacken the speed of the car until it struck the plaintiff; that the car did not stop until it reached the south corner of Baxter street; and that the plaintiff was struck on the southerly crosswalk of Roosevelt street and within the lines of that street.

The court, in its main charge, fully and fairly instructed the jury with reference to the duty of the defendant and its motorman. At the close of the charge the court further instnicted the jury, at the request of defendant’s counsel, that the motorman was not bound to prevent .an accident to the child, and that he was only bound to exercise ordinary care. Counsel for the defendant then requested the court to charge that “ the motorman was not obliged to apply his brake before he observed that the child was in danger of being struck by the car;” which request was refused and the defendant excepted. The jury had not been instructed to this effect.

This exception presents the only point raised on the appeal. We think the request was properly refused. It did not embrace a correct rule of law as applied to the facts as they might be foiind by the jury. It may well be that the motorman applied the brake as soon as Tie observed that the child was in danger of being struck by the car, but that is not the test of the defendant’s liability. It was the duty of the motorman to apply the brake at such time as a person of ordinary care and prudence occupying the position of motorman and exercising ordinary care in the discharge of his duties as such would have applied it. The. jury might well have found that had the motorman exercised proper care he would have discovered that the child was in danger sooner, and would have applied the brake before. The request as presented left the discovery of this danger entirely to the motorman, and eliminated any question of negligence on his part in failing to discover that the child was in danger sooner than he did.

It follows that the judgment and order should be affirmed, with costs.

Patterson, Ingraham and Hatch, JJ., concurred ; Van Brunt, P. J., dissented.

Judgment and order affirmed, with costs.  