
    Albert Frank, an Infant, by Michael Frank, his Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — what facts do not establish it, in the case of a boy ran over by a cable car.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff, a boy six years of age, was running, in company with two other boys, in a northeasterly direction from the westerly side of an avenue, on which defendant operated its cable road, toward a candy store on the east side; that the other boys crossed in safety, but that the plaintiff stopped to look for a penny which he had dropped and was struck by one of the defendant’s cable ■cars which was approaching at the rate of seven miles an .hour. It did not appear how far distant the car was when the boys reached the track on which it was approaching, nor that the gripman had any reason to anticipate that the plaintiff would stoop down, or that he did not stop the car in the shortest possible time after he saw the plaintiff stooping.
    
      Held,, that a verdict for the plaintiff could not be sustained, as it was based upon a pure speculation and conjecture as to the defendant’s negligence;
    'That the fact that, when the gripman saw the plaintiff suddenly stooping in front of the car, he devoted his energies to applying the brake and failed to ring the gong did not justify an inference that he was negligent.
    Appeal Dy 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 7th day of June, 1899, upon the verdict of a jury foi* $750, and also from an order entered in said clerk’s office on the 24th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover $25,000 damages by reason of injuries sustained by the plaintiff through the alleged negligence of the defendant in the operation of one of its cars on Lexington avenue at the intersection of One Hundred and Twelfth street on Sunday afternoon, June 16, 1897.
    The plaintiff was at the time of the accident six years of age, and just previous thereto had beén in the care of his married sister at 104 East One Hundred and Twelfth street. He was left on the doorstep with instructions to remain there while she went into the house; and, during her absence, started down One Hundred and Twelfth street to the corner of Lexington avenue where he met his sister Blanche, aged thirteen years, and asked her for a penny which she gave him. What then occurred is related by the various wib nesses as follows :
    Blanche Frank testified that she was on the side nearest the East river, and that “ after I gave him the penny he crossed over on the other side of 1,12th. street; that is all I seen of him. I was facing southwest. I 'did not see the car come along which struck him, * , * * I was talking to a friend. * * * I did not hear any . bell ring.”
    The boy was not sworn,, but was permitted to say : “ I went down to this corner (indicating); the other side and then I went right across * * * and the car was at 110th street, and then I went across and then the car came and struck me. * * * On the track I was looking for my penny. * * * I dropped it on the track. I had been looking for my penny two hours. * * * I did not hear the bell ring of the car at all. There were two other boys with me. They went across with me to the other side.” Itt reply to questions he stated that he started to go across to get candy and ran as hard as he could, but then said that he walked across | that the candy store was at the corner of One Hundred and Thirteenth street; that “ the car when I dropped the penny was up the hill. * * * I thought it was way up there. I didn’t see the car. I was looking for my penny * * * a long time.”
    James Nulty, who picked the boy up, testified : “ I was standing on the northeast corner. * * * I did not see the car as it was approaching. * * * I did not hear it approach at all. I did not hear any bell ring. * * * I did not notice whether the bell rang or not. I* * * I was talking. * * * ” .
    Patrick McGuire testified that he was with Mr. Nulty and saw the car approach and observed its speed, which was about seven miles an hour, and did not hear any bell ring, but the car stopjjed thirty-five or forty feet from the crossing; that he did not see the collision.
    Rosa Kleinhard, thirteen years of age, said she was on the southwest corner speaking with Blanche Frank, and saw Blanche give the boy the penny; that he went to the northwest corner and then over to the candy store; that he dropped his penny on the uptown ■ track and stooped down to look for it, and the car came along “ the way they generally run, fast; ” that the bell didn’t ring; the cat’ moved thirty-five or forty feet. ;
    
      Isidor Weil said he was sitting at the window of his house on Lexington avenue, about sixty feet from One Hundred and Twelfth street, and did not hear the car approach or any bell ringing, but that the first intimation was a lot of shouting in the street; that he could have heard the bell if it rang —■ although he didn’t hear any ringing that day — as he was at the window then.
    Estelle Frank said she was on the' avenue at the time, and if the car had rung the bell she would have heard it.
    The rest of the plaintiff’s testimony relates to the extent of the injuries received, and to the fact that, at such a place, the car could have been stopped within twenty-five feet.
    For the defendant, H. A. Redder testified that he was a passenger in the car, which was an open one, and sat on the second seat from the rear looking towards the west side and that part of the car was about ten feet south of the south crossing; in looking west he saw three boys running in a line; that when he saw them they were a little south of the north crossing between the sidewalk and the south track “ running in a northwesterly direction; the front of the car was about the middle of the crossing, middle of the street * * * they were running all together when they disappeared from my view. The last boy * * * was right close to the car ; lie was not ten feet away when they disappeared * * * I should think the boys were away fifteen or twenty feet — no more than twenty any way in a direct line; of course, they were diagonal.” That he had not noticed that the car had not slackened its pace at that time'; that it went right along till it finally stopped some forty or fifty feet north of the crossing; that he thought those boys would never be able. to get across the track without being struck by the car.
    'William Schneider testified that he was on the corner of One Hundred and Twelfth street and Lexington avenue at the time and heard a gong of a car, and looked and it was about the corner store on the other side; that he saw boys “ catacornered just coming from the southwest corner. I mean the northeast corner right across to run across; * * * it * * * might have been six feet, might have been seven * * * iu front of the car;’* that he paid no attention and was talking, and the next he heard wa9 hollering.
    Motion was again made to dismiss the complaint, and a verdict was asked to be directed for the defendant on the ground that there was no evidence from which there could be any verdict predicated on the negligence of the gripman; that the plaintiff has failed to prove freedom from negligence in the care of the child, and that ■ the preponderance of evidence entirely exonerates the road from any negligence. The motions were denied and the case submitted to the jury which returned a verdict of $750 for the plaintiff. From the judgment so entered the defendant appeals.
    
      Charles F. Brown, for the appellant,
    
      Louis Marshall, for the respondent.
   O’Brien, J.:

It is impossible from the evidence to point out any specific act of negligence on the part of the defendant’s gripman which cailscd the accident. The judge apparently, as shown in his charge to the jury, placed it upon the failure to ring the gong. He instructed them .that as a matter of law it was not necessary to ring the gong at every crossing, but that it was a question for them to determine whether upon the conditions existing at the time, with the boys on or near the track, the gong should have been rung.

If the boy Was so situated that the gripman saw or should have seen the boy in a position of danger, the failure to ring the gong, if .time permitted, might be evidence of negligence.

The testimony of some of the plaintiff’s witnesses and of both of the defendant’s witnesses, however, tended to show that the boys were proceeding from the westerly side in a northeasterly direction across the avenue, running towards a candy store on the east side of the avenue, and that the other boys having got safely across, the plaintiff, who had dropped his penny, stopped for the purpose of finding it and while in that position was struck by. the advancing car, the approach of' which it must be assumed he did not notice. If the boy, after starting to run across' the track, stopped to pick up the penny and asa result was injured, then the facts would bring ■it within the principle of the Fenton case (Fenton v. Second Avenue R. R. Co., 126 N. Y. 625) and no recovery could be had.

The main difficulty with the case is that there is no agreement among the witnesses as to just how the accident occurred, nor any clear or intelligent statement of the direction from which the boys came or were going, or the distance of the car from them at the time they actually reached the uptown track, although the weight of evidence sustains the view that the boy, after getting the penny from his sister, started with the two other boys from the southwest corner of Lexington avenue and One Hundred and Twelfth street, and, after proceeding to the northwest corner, went across in a northeasterly direction towards a candy store on the east side of the avenue.

The gripman, so far as the evidence shows, had no reason to anticipate that the boy whilst proceeding with the others across the track would stoop down to pick up a penny when a car was approaching rapidly. And no witness says that the gripman did not apply the brakes as soon as he discovered the boy’s position. One says the car could be stopped in about twenty-five feet, but it was shown that the car stopped about thirty-five feet above the north crossing.' As the boy was at some point north of the north crossing, it was not shown that the gripman did not stop in the shortest possible time after he saw the boy stooping on the track to get his penny.

If we assume the version of the occurrence supported by the weight of evidence, that the boy was running across the track and could have crossed in safety but for his stopping to pick up the. penny, it cannot be inferred that the gripman was negligent because he devoted his energies to the brake and failed to ring the gong. With the hoy suddenly stooping in front of the car, he could not be saved by ringing the gong, and the duty of the gripman was to give all his attention to stopping the car. That he did not so devote himself is not made to appear, although that was the burden resting on the plaintiff.

To sustain this judgment we must be satisfied to have it rest on the purest speculation and conjecture rather than, as the law requires, on proof that the defendant’s employees were guilty of negligence which was the sole cause of the injuries.

The judgment should be reversed and a new trial granted, with costs to appellant to abide event.'

Van Beunt, P. J., Patteeson, Ingeaham and McLaughlin, JJ., concurred.

Judgment reversed, new trial granted, costs to appellant to abide event.  