
    Charles G. Keller, as Administrator, etc., of George H. Keller, Deceased, Respondent, v. Henry Haaker, Appellant.
    
      Negligence — injury to an infant run over by a team in a street.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the locus in quo was a public street in the city of New York, obstructed with building materials upon its north side to such an extent that only one team could pass at a time; that there was a pile of brick three feet high, and just beyond it a sand pile, at which the deceased, a boy of five years of age, returning from school, stopped with a number of other children, in which situation the brick pile was to some extent an obstruction to his view of the team of the defendant 'which was being rapidly driven through the narrow passage; that just at this time a child snatched the deceased’s school book and threw it into the gutter, which was at the south side of the narrow passage, and as the deceased ran across the passage to pick up the book he was trampled to death by the horses’ feet.
    
      Meld, that under the circumstances it was a question for the jury whether the rate-of speed and the manner in which the team was driven did not constitute negligence upon the part of the defendant;
    That the deceased was only bound to exercise such care as an ordinarily careful and prudent person of his age would have employed under the circumstances.
    Appeal by the defendant, Iienry Haaker, 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 6th day of November, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 5th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    • The action was brought to recover damages resulting from the death of the plaintiff’s intestate alleged to have been caused by the negligence of the defendant. The deceased was a boy five years of age, and Was killed by one of defendant’s teams, attached to a heavy but empty coal wagon, which was being driven along West Fiftieth street in the city of New York. The defendant at the close of the plaintiff’s evidence, and again at the close of all the evidence, moved to dimiss the complaint on the ground that there was no proof of defendant’s negligence, and no proof of the absence of contributory negligence on the part of deceased.
    These motions were denied and defendant excepted. The case was submitted to the jury, and a verdict was rendered for plaintiff for $500. A motion for a new trial was made and denied, a judgment was entered and this appeal was taken.
    
      Robert TJiorne, for the appellant.
    
      Eclwm G. Davis, for the respondent.
   Williams, J.:

We entertain no doubt but that there was sufficient evidence -to sustain'the verdict of the jury as to. the negligence of the defendant 7 or his driver. ■ Considering the location- of the street, its condition at the time of the accident, being so obstructed as to leave only-enough space to permit a single team to pass by at' one time-, the large number of children in the street at the time, and the obstruction interfering with -a view of the street, it was fairly a question for the jury, whether the rate, of speed at which the team was being driven at the time of the accident, as the jury were justified in finding it, and the manner in which the team was being driven, was'. negligent. The jury were- justified in finding that it was the duty of the driver under the circumstances to drive the team carefully, and to be vigilant and careful, to see whether children were in the 'street and avoid injuring them. (Birkett v. Knickerbocker Ice Co., 110 N. Y. 504.)

It seems to us there was also sufficient evidence to sustain the finding by the jury that the deceased was free from contributory' negligence. No general rule of law can be laid down as to what in ail cases constitutes contributory negligence. The plaintiff has the burden of proof, and' must establish the absence of contributory negligence. But no particular kind or species/of evidence is .essential to be given. It is enough if, from all the evidence given in- the case on both sides, the inference can be fairly drawn by the jury that there was’ an absence of contributory negligence. The highest degree of care on the part of the injured party is not' required in ' order to establish freedom from contributory negligence, but only such care as an ordinarily careful and prudent person under all the . surrounding'circumstances would have used, and where, as here, the injured party is a boy of tender years, his age should' be considered and the care to' be exercised by him is such care as ah ordinarily ' careful and prudent person of his age would have used, ' We are not to judge of the accident and the circumstances surrounding the deceased at the time of its occurrence, from the evidence given by the defendant that was most unfavorable to the plaintiff. On the contrary, in support of the verdict we should consider the evidence most favorable to the plaintiff and should assume that the jury, as it had a right to do, credited such evidence rather than that most favorable to the defendant. These principles are now well settled, and no citation of authority is necessary to support them. From the evidence, therefore, the jury were justified in finding that the street on its north side was so obstructed with building materials, brick, sand, iron girders, etc., as to leave a space wide enough for but one team to pass at a time. The pile of brick was three feet, high, and there was a sand pile, not so high, beside it. The deceased had been at school and was on his way home, having his school book with him. He, with other children, had stopped at the sand pile. There was a large number of children in the street. The team, which killed the deceased was being driven rapidly through the street and through the narrow passage caused by the obstruction in the street. As the team approached this narrow passage, the deceased was at the sand pile, and the brick pile was between him and the team, and obstructed his view of the team to some extent. Just at this point of time another child snatched deceased’s book from him and threw it across the street to a point in the gutter in the extreme south part of the narrow passage. The deceased, seeing this done, and eager to recover his book, ran across the narrow passage and stooped down to pick up the book, and while in that position the team came upon him-, and he was knocked down and trampled upon by the horses’ feet, and his death resulted. If the team had been traveling at a proper rate of speed, the horses might have been stopped in time to avoid the accident. Some of the witnesses do say that deceased, ran under the horses’ feet, but these the jury evidently did not credit, and they were not bound to believe them.

Under these circumstances, and considering the tender years of the deceased, we are of opinion that the jury were justified in inferring the absence of contributory negligence. The case was very carefully submitted to the jury by the trial judge. Every right of the defendant was fully protected. The verdict was not large. The jury evidently acted without passion or prejudice, and we think its determination as to the facts should not be disturbed.

.The judgment should be affirmed, with costs.

. O’Brien and Ingraham, JJ., concurred; Yan Brunt, P. J., and Patterson, J., dissented.

Yan Brunt, P. J., and Patterson, J.:

We dissent upon the ground that there was conclusive evidence of contributory negligence.-•

Judgment affirmed, with costs.  