
    Julietta Hyland, an Infant by her Guardian ad litem, App’lt, v. Yonkers R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    Negligence—Duty oe parties driving vehicles in city streets.
    The driver of a vehicle in the streets of a city is hound to be vigilant to discover any one exposed to danger, and if he fails to look in the direction in which he is going and an accident happens in consequence, he is chargeable w ith negligence. The driver of a street car is not excused from the performance of this duty by the necessity of making change for a passenger.
    Appeal from a judgment rendered at a circuit in Westchester county dismissing the plaintiff’s complaint.
    
      Frank F. Blackwell, for app’lt; J. F. Brennan, for resp’t.
   Barnard, P. J.

—The case shows that the plaintiff, a child of some two and one-half years of age, went into the public street with two other children of Mrs. Bowie, a neighbor. The plaintiff was put down the front stoop to play with the Bowie children. The plaintiff got upon the street in front of defendant’s street car in motion. The car had no conductor, and the driver tried to make change for a lady who wished to pay her fare. The horses were permitted to go on. After the driver had made the change he again turned his face toward the horses, and then he saw for the first the child, and tried to stop the car and failed, because he had not time to prevent her being injured. The car did serious injury to the little girl. The negligence of the driver is clear. He should not drive horses along the streets of a city without looking out for persons in the street. If he fails to look, and an accident happens in consequence, he is chargeable with negligence. Murphy v. Orr, 96 N. Y., 15.

The child injured in this case was only a little older than the plaintiff. In Barker v. Savage, 45 N. Y., 191, it was held that a driver of a vehicle in the streets of a city is bound to be vigilant to discover anyone exposed to danger, and to control their teams so as to avoid danger. In this case, it is plain that the jury could find that had the driver looked he would have seen the child. The necessity of making change did not excuse an omission of this duty of watchfulness for passengers exposed to injury.

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

Pratt, J., concurs; Dykman, J., not sitting.  