
    John Zwack, an Infant, by Mathias Meyer, as Guardian ad Litem, and as a Poor Person, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
    (Argued June 21, 1899;
    decided October 10, 1899.)
    1. Negligence — Rate of Speed of Railroad Train. In the absence of signals or safeguards at crossings, the passage of a train through a populous city at the rate of twenty miles an hour is evidence upon which the jury may find negligence.
    2. Degree of Care Required from Infant. An infant, in order to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected from one of its years.
    3. Question Whether Infant Is Sui Juris. The question whether an infant under the age of twelve years is sui juris depends upon its capacity and intelligence, and hence is a question for the consideration of the jury, in connection with all the facts and circumstances of the case.
    4. Looking for Danger by Traveler at Crossing. When the plaintiff, in an action for an injury received by a traveler at a railroad crossing from a passing train, testifies generally that he looked both ways on approaching the crossing, it is not ordinarily necessary, in order to take the case to the jury, for him to state that he looked during every instant of the time while crossing, or while passing over every foot of the ground.
    5. Case Involving Contributory Negligence as Question of Pact. A hoy, ten years old, injured at a railroad crossing in a city street, where two main tracks and several side tracks ran east and west, with a curve a few hundred feet to the east, and when there were cars standing on the side tracks east of the crossing, testified, in an action against the company for damages, that on arriving at the center of the first side track he stopped and looked both ways; that he saw or heard no engine or train from the east, but did see two engines coupled together coming from the west; that he waited for them to pass, and then immediately started across the tracks and, when about twenty-five feet from where he stopped to allow the engines to pass, was struck by a passenger train from the east and injured. Held, that the question of contributory negligence, as thus presented, was one of fact, and not of law, although the plaintiff did not affirmatively state that he kept on looking both ways while crossing.
    
      Zwack v. JV. T„ L. E. & W. B. B. Go., 8 App. Div. 483, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 5, 1896, affirming, by a decision which was not unanimous, a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.
    This action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of defendant.
    The facts, so far as material, are stated in the opinions.
    
      Charles Y. Nellany and Adelbert Moot for appellant.
    Plaintiff was clearly guilty of negligence contributing to the occurrence of the accident. (Parsons v. N. Y. C. & H. R. R. R. Co., 85 Hun, 23; Mahon v. Burns, 13 Misc. Rep. 19; Eastwood v. Mining Co, 86 Hun, 91; Wilds v. H. R. R. R. Co., 24 N. Y. 430; Weyland v. N. Y. C. & H. R. R. R. Co., 40 N. Y. S. R. 566; Heaney v. L. I. R. R. Co., 112 N. Y. 122; Lortz v. N. Y. C. & H. R. R. R. Co., 83 Hun, 271; Fowler v. N. Y. C. & H. R. R. R. Co., 74 Hun, 141; McCarthy v. N. Y. C. ds H. R. R. R. Co., 37 App. Div. 187; Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308.) The evidence pointed as strongly to the theory that the boy ran into the train, as to the theory that he was run into by the train. Ho recovery, therefore, should have been allowed. (Fowler v. N. Y. C. & JI. R. R. R. Co., 74 Hun, 141.)
    
      H. H. Bacon for respondent.
    The defendant’s negligence caused the injuries. (Swift v. S. I. R. T. R. R. Co., 123 N. Y. 645; Cordell v. N. Y. C. & H. R. R. R. Co., 70 N. Y. 119; Thompson v. N. Y. C. & H. R. R. R. Co., 110 N. Y. 636; Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583; Ernst v. H. R. R. R. Co., 35 N. Y. 9.) Plaintiff was not guilty of contributory negligence. (Oldenburg v. N. Y. C. & H. R. R. R. Co., 12 N. Y. 419; Dolan v. D. & H. C. Co., 71 N. Y. 285; Glushing v. Sharp, 96 N. Y. 676; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 72; Greany v. L. I. R. R. Co., 101 N. Y. 419; Casey v. N. Y. C. & H. R. R. R. Co., 78 N. Y. 518.) The law does not hold plaintiff to the same degree of care that it does an adult person. (Swift v. S. I. R. T. R. R. Co., 123 N. Y. 645 ; Byrne v. N. Y. C. & H. R. R. R. Co., 83 N. Y. 620; Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308.)
   O’Brien, J.

The plaintiff, a boy about ten years old, was injured while on his way to school, at the defendant’s crossing at Hydraulic street, Buffalo, on the 24th óf October, 1894. The jury rendered a verdict in his favor for $1,000, and the judgment entered thereon has been affirmed at the Appellate Division.

The general question presented by the appeal is whether the trial court committed an error in submitting the case to the jury. The testimony tended to show that the plaintiff, while crossing the street, was struck by the cow-catcher of a passenger train going west at the rate of twenty miles an hour. This rate of speed on the part of the defendant in the absence of signals or safeguards at crossings, when passing through a populous city, was evidence upon, which the jury could find negligence, so that there was no error in submitting that question to the jury. This court cannot well be asked to decide that such a rate of speed under such circumstances is not negligence as matter of law.

The remaining question is whether the plaintiff gave sufficient evidence to show that he was free from contributory negligence, or, rather, whether the proof was of such a character as to carry the case to the jury on that question. If that was, under the circumstances, a question of fact and not of law, then the appeal could not be sustained. I think it was a question of fact. In order to determine in such cases what degree of care a boy of ten years is bound to exercise, we must know something with respect to his capacity and maturity, and he is chargeable only with such a degree of care as can reasonably be expected from one of his age. As this court has said in a case quite similar to this, The law is not so unreasonable as to exact from an infant the same degree of care and prudence in the presence of danger as it exacts from adults. An infant, to avoid the imputation of negligence, is hound only to exercise that degree of care which can reasonably be expected from one of its age.” (Byrne v. N. Y. C. & H R. R. R. Co., 83 N. Y. 620; Swift v. S. I. R. T. R. R. Co., 123 N. Y. 645.) It will be observed that both of these eases were actions by infants for injuries at crossings, where it appears that the infants were older in years at least than in the case at bar. The reasoning of the court in the case of Tucker v. N. Y. C. & H. R. R. R. Co. (124 N. Y. 308) is to the effect that an infant under the age of twelve years is presumed to be non sui juris, so the question with respect to his capacity at that age becomes one of fact. It is true that an infant, even of more tender years, may be shown to be sui juris. The fact must in such cases depend upon the capacity and intelligence of the child, and, hence, becomes a question for the consideration of the jury in connection with all the facts and circumstances of the case.

When we consider the age of the plaintiff in this case and the evidence in regard to his capacity and intelligence it would be very difficult, under the doctrine of the above cases, to take the case from the jury on that question and have it determined as one of law. The testimony in this case would require the submission of the question to the jury, even if he had been an adult. The street upon which the plaintiff was walking runs practically north and south, and it was a route frequented by children in going to and from school. The defendant’s railroad crosses this street at right angles. The tracks to the west run in nearly a straight line several hundred feet to the station. A few hundred feet east of the station there is a sharp curve in the track to the north. The plaintiff was going north on the west side of the street. At the crossing were two main tracks, besides eight or ten side tracks and switches. . On arriving at the center of the first switch track south of the main track he says that he stopped and looked east and west along the track for approaching danger. He saw or heard no engine or train from the east, but he did see two engines joined together coming from the west. They were coupled back to back, had the bells ringing and were making considerable noise. As they were near the crossing the plaintiff waited for them to pass towards the east, and when they had cleared he immediately started on his way north across the track, and about twenty five feet from the place where he had stood to allow the engines to pass he was struck by a passenger train from the east going, as already stated, at the rate of twenty miles an hour, and received the injuries for which the damages were awarded.

The argument is that the plaintiff did not look towards the east, or if he did he could have seen the coming train and avoided the danger. He says that he looked both east and west, but it is urged that this testimony means that the looking was before he stopped for the engines to pass, and since he did not swear, in so many words, that he kept looking all the time, and especially during the infinitesimal period of time it took him to go twenty-five feet, the court should have taken the case from the jury. It was for the jury to give construction to the words of' the witness, and the general statement that he looked both ways means in this case just what it does in every case of this character. The traveler is bound to use his eyes and ears, but when he swears generally that he did, it is not ordinarily necessary, in order to take the case to the jury, to swear that he looked during every instant of the time, or while passing over every foot of the ground. The argument in support of this appeal is based upon that notion, or else upon the theory that the boy did not tell the truth when he swore that he looked both ways. It was for the jury and not the court to determine whether in this respect he told the truth. The jury could not very well find that the boy, who had seen the danger of' the engines from the west and waited for them to pass, was utterly oblivious and neglectful of all danger from the east. It might very well say, as it did, that the eyes of the boy were not fixed in one direction, but that they had a general sweep of the locality, and although he did not see the coming train, yet he acted under the circumstances with reasonable prudence.

But, it may be asked, if he looked towards the east at all why did he not see the coming train and avoid it ? That question may be asked, and generally is, in every case of this character. It is an argument to be addressed to the jury, and not to a court dealing with questions of law only. There was testimony in the case which enabled the jury to answer the question, and it did, as the verdict indicates.

In the first place, at a distance of a few hundred feet east of the crossing, was the curve in the track which prevented any observation of the coming train at a distance. Then there were cars standing on the side tracks, east of the crossing, that concealed the train from the plaintiff as he got nearer the track, and, finally, the passing engines, going east, concealed it when it came still closer to the crossing. The plaintiff’s conduct must be judged in view of these facts and circumstances, and it was clearly the province of the jury, and not that of the court, to determine whether he used such care and prudence as under the circumstances it was reasonable to expect.'

The case may be said to be a close one, but it is much stronger in favor of the plaintiff than many others in which we have felt bound on such questions by the decision below. It is not necessary to mention but one or two which are so recent as to be fresh in the mind of the court. In the case of Miles v. F., J. & G. R. R. Co. (86 Hun, 508) a man driving a horse with a carriage attempted to cross a railroad. There was some proof that he looked when within "twenty-five or thirty feet of the track, but no proof that he did so after-wards. He did not succeed in crossing, or even in getting onto the track, for the reason that the train was in his way, and on reaching it the horse turned at nearly right angles and ran along the side of the track in the same direction as the engine was going, but so close to the train that it came in contact with the carriage, which was overturned and one of the persons injured. A careful study of the record in that case will show that it was a very much more favorable one for a non-suit than this one, but the judgment for the plaintiff was affirmed in this court. (155 N. Y. 679.) And in a still more recent case, depending on similar facts, the same conclusion was announced. (Judson v. Central Vermont Railroad Co., 158 N. Y. 597.) There was a dissent below in tlie former case as there is in this, but it was held that the question of contributory negligence was one of fact and not of law.

In my opinion this court is not warranted in interfering with this judgment upon the narrow ground that the plaintiff did not affirmatively state in his testimony that he kept on looking both ways all the time while crossing. The jury could have found, as they did find, that while he may have committed an error, in view of the speed of the coming train, in calculating his ability to cross with safety, yet under all the circumstances his conduct was not so unreasonable as to deprive him of all claim for redress.

The judgment should, therefore, be affirmed, with costs.

Bartlett, J. (dissenting).

The plaintiff was, I think, guilty of contributory negligence,, as matter of law, and it was error to submit the question to the jury. The undisputed evidence in the case shows the plaintiff, who was between ten and eleven years of age, to have been sui juris.

The plaintiff and his witness, Daniel Zink, alone testify as to the degree of care exercised by plaintiff in observing the approach of the train that struck him.

The plaintiff, on reaching the first switch track on the south, did stop, and look both ways and observed two engines, coupled together, back to back, approaching on the east-bound main track from the west, and it may be admitted, for the purposes of discussing the present question, that the outlook to the east from that point of view was obstructed to a very considerable extent by cars stored on the side tracks.

The important question- is what plaintiff did in the way of looking toward the east after the two engines had passed and when he had a full opportunity to look from eight hundred to thirteen hundred feet in tliat direction, having crossed the switch tracks and cleared the obstructing cars. The plaintiff’s testimony is as follows, viz.“ I allowed these engines to go by, then I walked ahead. I had my dinner in my hands. I got about the second main track before I was struck ; up to it, I guess. I did not see or hear this train coming.”

Zink, plaintiff’s witness, was on the pilot of one of the two engines referred to — the rear one facing the west and backing eastward. He testified on cross-examination, referring to the plaintiff: “ He started to run as soon as we passed by. He kept up his running until he was struck by the other train. "x" * * I didn’t notice him doing anything from the time he started to run until he was struck. * * * The little boy from the time he started to go across these tracks did not stop and turn his head or look either way at all; he looked right straight ahead; that is the way he got run into, just as T have told you here.”

This evidence stands uncontradicted, and I think it discloses a situation where the trial judge was bound to find contributory negligence as matter of law. '

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Parker, Ch. J., Martin and Vann, JJ., concur with O’Brien, J., for affirmance; Gray, J., concurs with Bartlett, J., for reversal; Haight, J., not voting.

Judgment affirmed.  