
    Gustav Muller, an Infant, by George Muller, his Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence — a child five years old crossing tracks in full view of a motorman — whether the child was sui juris is a question for the jury.
    
    Evidence that a child, between five and six years of age, who at the time when he started to cross a street, at a point where there was no crosswalk, could have been seen by the motorman on a trolley car from a point at a distance of from 50 to 100 feet up to the time that he was struck by the ear after he had crossed the track nearest to him, is sufficient to justify the submission to the jury of the question whether the defendant was negligent.
    
      Semble, that whether a child of such an age is sui juris or non sui juris is a proper question to be submitted to the jury.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of November, 1896, upon the verdict of a jury for $8,000, and also from.an order entered in said clerk’s office on the 29th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for personal injuries resulting to the plaintiff from the alleged negligence of the defendant.
    
      Oharles A. Oollin, for the appellant.
    
      Samuel D. Morris, for the respondent.
   Goodrich, P. J.:

The defendant operates a trolley railroad on Myrtle avenue which runs east and west. Evergreen avenue and Suydarn street, intersecting each other, cross Myrtle avenue in diagonal directions. There is a crosswalk over Myrtle avenue to the eastward of Suydarn street.

On July 14, 1896, the plaintiff, a boy between five and six years of age, started from the north side of Myrtle avenue, at a point twenty-five or thirty feet eastward of the crosswalk, intending to cross the street. The car of defendant was going east on the south track, and the plaintiff was either struck by the fender or by the running board at the side of the car, fell under the car and was so badly injured that his leg was amputated. The child lived on Suydam street near the place of the accident, and had been frequently warned by his parents about the cars on Myrtle avenue.

The plaintiff alleges that thé defendant “ so negligéntly and carelessly managed and operated said car, that solely in consequence of the said carelessness and negligence, and without any fault or neglect on the part of the plaintiff, the said plaintiff was struck by said car with great force and violence, and was thrown down and run, over by said car.” The defendant denied this allegation and alleged that the injury was caused by the negligence of the infant or of his parents and guardian.

At the close of the plaintiff’s, evidence and again at the close of the entire evidence the defendant moved for a dismissal of the complaint on the ground, among others, “Second. That the plaintiff has failed to establish his own freedom from negligence, or the freedom from negligence of his parents, causing or contributing to the accident. Third. That the plaintiff has failed to show negligence on the part of the defendant and its servants or co-employees causing the accident.” The motion was denied under the defendant’s exception. ’ A motion was also made and denied upon the judge’s minutes, and upon the ground that the verdict was against the weight of evidence and contrary to law, and that the damages were excessive. , "

The plaintiff contends that the evidence clearly shows negligence of the defendant on the ground that the car was coming at an unusual rate of speed ; that the street was clear of vehicles ; that the motorman could have seen the child at a distance of over 100 feet, but failed to see him in time to stop the car; and that the child was on the southerly track in front of the car when struck by the fender.

On the other hand, the defendant insists that the car was running at the ordinary speed; that a wagon bound west on the northerly track was passing, from behind which the boy suddenly ran towards the car, and was struck by the side of the fender or of the car. These questions were submitted to the jury, and if there was evidence to sustain them the verdict should not be disturbed.

A very careful and elaborate examination of the testimony brings me to the conclusion that there is sufficient evidence to sustain the verdict.

There is testimony tending to show that the car was from 50 to 100 feet away when the child left the sidewalk, and that the motorman could have seen him, not only when he left the sidewalk, but all the time during which he was approaching the car. It is true that there is testimony that there was a wagon upon the track which intercepted his view of the child, but this is contradicted; and thus a question of fact was tendered to the decision of the jury, whether or not there was anything to prevent the motorman from seeing the child in abundant time to avoid running over him.

The evidence as to the unusual speed of the car is not very satisfactory, but it may fairly be inferred that the car was not going at a very high rate of speed, as it was stopped in a little more than its own length. This question was fairly submitted to the jury without request or exception by the defendant.

The learned counsel for the defendant made an elaborate argument in regard to the negligence of the child as sui juris, or as non suijwt'is, but we cannot lose sight of the decision of the Court of Appeals in the case of Birkett v. Knickerbocker Ice Co. (110 N. Y. 504), where the court held that it was not negligence, as a matter of law, for the parents of an intelligent child, four and a half years of age, living in a crowded locality, to permit the child, with proper instructions, to play upon the sidewalk, and that the question of negligence in such cases was for the determination of the jury.

The court carefully explained to the jury the distinction between the two, and left to their decision the question to which class the boy belonged, charging that if the child was sui j uris the law exacts from him such a degree of care and caution as might be reasonably expected of one of his age, and if non sui juris, then the question, to be determined was whether the parents of the child were negligent in permitting him to go on the street unattended, and if they were thus negligent the verdict must be for the defendant. This subinission was entirely proper, and in exact accordance with well-recognized authority.

The judgment is affirmed.

All concurred.

Judgment and order unanimously affirmed, with costs.  