
    John Hodges, an Infant, by Elizabeth Hodges, his Guardian ad Litem, Appellant, v. Westcott Express Company, Respondent.
    
      Negligence — a boy, while stooping to pick up a coin in the middle of the street, struck by a horse and injured.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, a boy nine years of age, who, when near the middle of a street which he was attempting to cross, dropped a piece of money and while attempting to pick it up slipped, and before he could regain his feet was stepped upon by a horse driven by one of the defendant’s employees, the evidence tended to show that the horse was traveling at the rate of four miles an hour, and could have been stopped within six or eight feet; that at the time the boy slipped the horse was twenty or twenty-five feet from him, and that there wss nothing to obstruct the view of the driver, who at the time was conversing with a companion and was not looking in the direction in which the horse was going.
    
      Held, that the question as to the defendant’s negligence and the plaintiff’s contributory negligence should have been submitted to the jury.
    Van Brunt, P. J., and Barrett, J., dissented.
    Appeal by the plaintiff, John Hodges, an infant, by Elizabeth Hodges, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 22d day of July, 1898, upon the dismissal of his complaint by direction of the court after a trial at the Hew York Trial Term.
    
      Herman Gottlieb, for the appellant.
    
      George W. Schurman, for the respondent.
   McLaughlin, J.:

On the 26th of October, 1897, the plaintiff, then nine years of age, attempted to cross First avenue near Sixty-fifth street, in the city of Hew York, and in doing so he was seriously injured by a horse driven by one of defendant’s servants, and he instituted this action to recover damages for his injuries upon the ground that the same were caused by the negligence of the defendant. Upon the trial the plaintiff was nonsuited and judgment entered to that effect, from which he has appealed.

In determining whether the nonsuit was properly granted, the rule is well settled that the plaintiff is entitled to have the evidence considered in the light most favorable to him, and is also entitled to the benefit of all inferences in his favor that can fairly and properly •be drawn from it.

When the evidence is thus considered, I am of the opinion that a question of fact was presented which should have been submitted to the jury. It appeared that on the day in question, between four and five o’clock in the afternoon, the plaintiff was sent by his aunt to a butcher shop to purchase some meat, and in going to the shop it was necessary for him to cross First avenue.' He attempted to do so, and, when near the middle of the street, he dropped a piece of money which had been given to him to pay for the meat, and, in attempting to pick it up, he slipped, and before he could regain his feet he was struck, stepped upon or kicked by the horse and seriously injured. An obligation rested upon the defendant to have its horse driven with care and in such a manner as to prevent unnecessary injury to persons lawfully traveling in or attempting to cross the street. Does the evidence show that the horse in question was driven in such a way or so managed as to fulfill this obligation ? I think not. The evidence of the plaintiff tended to show that, at the time he slipped, the horse was twenty or twenty-five feet fromjiim, and that the driver, instead of looking in the direction in which the horse was going, was conversing with a companion, and the two had their attention fixed upon a political banner that was being strung across the street, and that the horse was permitted to go practically uncontrolled until after the plaintiff was injured. The plaintiff testified : I didn’t see the horse coming right up against me because I was stooping down picking up the ten cents so that I couldn’t see him ; as I was picking up the penny I was looking down for it in order to see where to find it, so I was not looking at the horse and wagon that was coming towards me at ail, then; and all of a sudden I was struck when I was in that position with my hands and head down.” The witness Golden testified : When the boy was about four or five feet away from the car track this wagon came along" and knocked him down; he was in that position, like that (indicating), picking up something and the wagon came along and the-horse hit him with his forefoot and also with the hindfoot.” This' witness also testified that when the hoy stooped to pick up the piece-of money the horse was about twenty feet from him and that the driver and his companion were at that time gazing at the banner and talking together; that when the hoy was stooping down-there was nothing between him and the horse to obstruct the view of the driver had he been looking in the direction in which the horse was going. These facts were corroborated by the testimony of two other witnesses. The driver of the wagon was produced by the plaintiff and testified that he was at the time driving at the rate of not over four miles an hour, and he gave a description of the horse and wagon, while another witness testified that a horse and wagon of that description driven at the rate of speed stated could he stopped within six or eight feet. It is thus shown that the evidence would have authorized a finding by the jury that the driver of the wagon was not, at the time of the accident, nor for a short time immediately prior thereto, attending to his duty; and that had his attention been upon his horse he would have seen the plaintiff while in the act of picking up his money and could have avoided the injury complained of.

The further question remains whether the plaintiff himself was guilty of negligence which contributed to his injury; and this was also a question for the jury. The plaintiff had as much right in the street as the defendant’s horse and driver had. He had a right to stop and pick up money which he had dropped, and whether he was guilty of negligence in doing so, with the defendant’s horse approaching at the rate of speed stated and in the location in which it then was, was for the jury to determine.

For these reasons we think the complaint was improperly dismissed and that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Rumsey and Patterson, JJ., concurred ; Van Brunt, P. J., and Barrett, J., dissented.

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