
    JOHN A. SQUIRE, Administrator, etc., Plaintiff and Respondent, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Defendant and Appellant.
    J. Rxjn-oveb Case.—Horse-cabs.
    1. What not sufficient proof of negligence by the defendant, and of the absence of negligence on the part of the person run over, to carrry a case to the jury.
    
    
      a. Where the only evidence on the part of the plaintiff is by witnesses who did not see the deceased nor the car or horses until just at the moment that the horses and car came into contact with the deceased, who testified that the car was just turning the comer from one street into another, and going at the rate of six or seven miles ' an hour, that they heard some hallooing, and saw the driver of the car breaking it up, there is not sufficient proof of negligence by the defendant, and of the absence of negligence on the part of the deceased, to carry the case to the jury.
    3. What sufficient proof of concurring negligence to caU for a dismissal of the complaint.
    
    
      a. Where on the part of the defendant one witness testified that as the car was passing around the curve the deceased was close to the track, that the driver hallooed to him, and he tried to run out of the way, but became bewildered and ran under the horses; and another testified that when the driver hallooed the deceased was standing with his face towards the car ready to run, and he started across the track; and another testified. that the deceased was standing on the curbstone when the car came around the curve, and he started at an angle and ran ahead of the car, that he made across to head the car off and ran into the horses; which evidence was uncontradicted and unrebutted, and plaintiff introduced no evidence other than that which as above stated was insufficient to carry the case to the jury.
    Before Barbour, Ch. J., Monell and Freedman, JJ.
    
      Decided December 31, 1873.
    Held,
    1. That the defect in the plaintiff’s proof had not been supplied.
    3. That the evidence established affirmatively that the death of the deceased was caused chiefly by his own negligence.
    1. Tim, although the deceased was a child of tender years.
    
    
      3. Infant, cati'e and prudence required of.
    
    1. The same care and prudence is required which should be exercised by one of more mature years.
    
      A. Evidence as to negligence by the defendant and absence of negligence on part of one injured.— What is not required, and what may be considered. 1. Direct and positive proof is not required.
    3. The facts and attending circumstances may be considered, and the jury may determine the question from them.
    3. The disposition of men to take care of themselves and keep out of difficulty may be regarded as an element tending to negative the charge of contributory negligence.
    But,
    1. A bare presumption is not sufficient; there must be some tangible proof, or the attending circumstances must be such as to show the party was not in fault: then it becomes a question for the jury.
    SI. Dismissal ■ op Complaint.
    1. Refusal to grant a motion to dismiss made on the trial when not ground for a reversal, although at the time of the refusal it was error.
    
    
      a. When the defect in the plaintiff’s case is subsequently cured in the course of the trial.
    1. Consequently although a plaintiff who sues for injuries claimed to have been sustained by him through the negligence of another is bound to show affirmatively both the negligence of the other, and also that he did not contribute by his own negligence to the injury, yet it is not necessary that such proof should be given in the first instance, it is sufficient if when the case goes to the jury it is not infirm in those respects.
    .Appeal By defendant from judgment and from order denying a motion made on the minutes for a new trial.
    The action was to recover damages for the loss of the plaintiff’s son, a lad of about eight years.
    Upon the trial the plaintiff failed, by any witness-called and examined on his behalf, to furnish any evidence of the manner in which the child got under the-horses? feet. The car was turning the curve and going-from Eighth into Lewis Street. The first that any of the plaintiff’s witnesses saw was the child under the horses’ feet. One witness testified: “The first time I saw the boy he was entangled in the harness or some place around the horses.” Another witness—“I did not see the car or horses before it came in contact with the boy. When I first saw the boy he was just behind the horses, between the horses and the wheel.” Another witness “first saw the boy under the horses’ front feet.” There was some evidence of the speed of the horses. One witness testified that they were going at the rate of six or- seven miles an hour; another, that they were-trotting at the rate of six’miles an hour. One or two of the witnesses heard some hallooing, and saw the driver of the car breaking it up. This Avas all the evidence given by the plaintiff of the accident.
    The plaintiff having rested, the defendants moved to* dismiss the complaint on the following grounds:
    1. That the plaintiff has failed to prove the cause of action. *
    2. That the plaintiff’s case fails to show that the injury to the deceased was caused solely by the defendant’s negligence.
    3. That the plaintiff has failed to show that the acts- or omissions of deceased did not concur or contribute in any degree to the accident.
    4. The complaint should be dismissed because there was no evidence that the deceased looked at all, in either direction, for approaching vehicles.
    
      5. It should be dismissed because it was the legal duty of the deceased to look along the street to see whether it was safe for him to have proceeded across it, and the plaintiff has given no evidence on this point.
    6. Because it was negligence on plaintiff’s part to allow the deceased to be in the public streets unattended by a person sui juris, or guardian.
    7. Because the plaintiff failed to show that the deceased was free from the imputation of negligence on his part.
    The court denied the motion to dismiss the complaint upon each and all of the grounds. To which ruling and decision of the court defendants then and there duly excepted.
    The defendants thereupon gave the following evidence. One witness testified: “I was a passenger on the car; it was going at the regular rate; the horses were on a trot; they were trotting when I first saw the boy; he was then about three feet from the track ; the driver hallooed to him to get out of the way, and he tried to run out of the way, but he became so bewildered that he ran into the horses ; the boy, when I first saw him, was between the east track in Lewis Street and the sidewalk, trying to cross the street; my attention was first attracted by the driver hallooing to the boy; I looked and saw the boy trying to cross the track, when the driver hallooed to him, and in thus trying to get out of the way he got so frightened that he ran in towards the horses, and they knocked him down.” Another witness testified: “I was standing on my own stoop, which fronts on Lewis Street"; I was looking towards the river ; I saw the boy making a start to run across the track, and the car was coming around the curve; I heard the driver cry—heard the driver cry first and then saw the boy; when I first saw the boy he was standing with his face towards me, ready to ran. If this passage-way was Lewis Street, and here the sidewalk, I would "be standing here, and the "boy was coming around here, with his face towards me. I had no opportunity to see whether he looked in any direction or not; I mean that I did not see, for when I saw him the sight left my eyes. He started to run across the track; the next thing I saw was the driver pulling his "brake; then I gave one scream and ran into the house; and" when I came out again the "boy was laid on the cellar door. The last I saw of him was when he started to run; did not see him hit; cannot say where he was standing when he started to run. He was coming from the dock ; he was on the sidewalk; I could not tell how far from the curb; he was not far from it, still "back from it on the sidewalk. That was after I heard the driver call. When I first saw the car it was going around the curve; the horses were not on the curve; the car was on the curve; the horses when going around the curve were walking like.” Another testified: "I saw the Tboy on that morning. The first I saw of him he was standing on the curbstone. I saw him, start at an angle and run ahead of the car. The car was going around the curve into Lewis Street, and he made across to head the car off, and the driver hallooed to him; when I first saw the "boy the car was turning the curve ; the "boy stood here and started at an angle to run ahead of the car. When the driver saw him start he hallooed out at him; and the "boy, when the driver hallooed at him, ran into the horses and fell. I think there is room for a horse and wagon to drive "between the track and the curb at that point.
    " After the "boy started to run I did not see him until he was taken from under the car; saw him run into the horses and the horses strike him, and then I lost si ght of him. ’ ’ Another testified: " The first thing I saw was the "boy standing on the corner of Eighth and Lewis streets; I had my head through the window of the car ; I was leaning on the car; I saw him through the east side window ; he was not standing still; he was running ahead of the horses when the driver hallooed, then he turned and ran into the horses ; before the driver hallooed he was running ahead of the horses; he wanted to get ahead of the car; he was running alongside of the horses, trying to cross them; all I can say is that he was running alongside of the horses or a little ahead of them, the same way they were going when the driver hallooed to him, then he became frightened, and turned and ran into the horses.” The defendant also gave evidence that the car was going at the usual rate of speed. At the close of the evidence, the defendant’s counsel renewed the motion to dismiss the complaint on the grounds already stated, and on the following additional grounds:
    1. That plaintiff has faffed by his proofs to make out a cause of action.
    ' 2. That no negligence has been shown on the part of the defendant.
    3. That the deceased has not been shown to be free from negligence, contributing to the accident.
    4. That the deceased was guilty of negligence contributing to the accident.
    The court denied the motion to dismiss the complaint on each of the grounds aforesaid, to which ruling and decision defendant, by its counsel, then and there duly excepted.
    The court submitted the question of concurring negligence to the jury, charging them that an infant was held to the exercise of the same care as an adult.
    The plaintiff had a verdict.
    A motion was made upon the judge’s minutes for a new trial, which was denied.
    The defendant appealed.
    
      
      Brown, Hall, & Vanderpoel, attorneys, and A. Oakey Hall, of counsel for appellant, urged:
    First Point. The complaint should have been dismissed at the close of the plaintiff’s testimony, or a verdict directed for the defendant at the close of the case, for the reason that no negligence was shown on the part, of the defendant.
    The mere fact that an accident has occurred is not sufficient to establish even prima facie the negligence of a railroad company in the case of one not a passenger (Terry v. N. Y. Central R. R. Co., 22 Barb. 574).
    Second Point. The complaint should have been dismissed on the close of plaintiff’s case, because, as the court will perceive by the facts, it utterly failed to show, as an affirmative part of the case, that the plaintiff did not contribute towards the accident.
    1. The plaintiff’s facts were utterly silent as to what the boy did before he was seen struggling with or under the horses’ feet.
    This burden of proof was upon the plaintiff (Button v. The H. R. R. Co., 18 N. Y. 248, citing many cases ; Welling v. Judge, 40 Barb. 193; Lehman v. City of Brooklyn, 29 Barb. 234; Delafield v. Union Ferry Co., 10 Bosw. 216 ; Gonzales v. N. Y. & R. R. Co., 38 N. Y. 440. See also, Wilds v. Hudson River R. R. Co., 24 N. Y. 430; Ryan v. Hudson River R. R., 33 Superior Ct. 137; Ernst v. Hudson River R. R. Co., 24 How. Pr. 103).
    Third Point. At all events, on defendant’s supplemental evidence showing the relation of the boy to the accident before it occurred, and on the undisputed facts,' there should have been a verdict directed for the defendant.
    1. These supplemental facts distinctly showed that the boy was guilty of contributory negligence.
    The greatest negligence on the part of the defendant will not cure the defect of the least negligence contribuíing to the injury on the plaintiff’s part (Wilds v. The H. R. R. Co., 24 N. Y. 430).
    To carry a case to the jury, the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant (Johnson v. The H. R. R. Co., 20 N. Y. 73).
    Fourth Point. The complaint should have been dismissed, and on the whole testimony a verdict directed for the defendant, because the plaintiff was bound to show that the deceased looked with proper caution to the approaching railroad car (Barker v. Savage, 45 N. Y. 191; Ernst v. The H. R. R. Co., 24 How. 97 ; Nicholson v. The H. R. R. Co., 41 N. Y. 542 ; Baxter v. Troy & Boston Co., id. 502; Harty v. Central Co. of N. J., 42 N. Y. 472 ; Griffen v. N. Y. C. R. R. 40 N. Y. 34 ; Wilcox v. The Rome, etc., R. R. Co., 39 N. Y. 350; Wilds v. Hudson River R. R. Co., 29 N. Y. 315).
    Fifth Point. Whether or not the plaintiff’s intestate was sui juris was a question of fact for the jury. If they had found that he was not, ‘ ‘ or not of that age and intelligence that it was safe to trust him in the street unattended,” then it was clearly negligence to send him into the street as his father did (Drew v. Sixth Av. R. R. Co., 26 N. Y. 49 ; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 459, 462, and cases there cited).
    
      Robert Murray, attorney, and S. T. Friend, of counsel for respondent, urged:
    
      First. The defendant’ s motions to dismiss the complaint were properly denied.
    
    The questions of negligence on the part of the defendants and of contributive negligence on the part of the deceased should have been submitted to the jury, and a refusal so to submit them would have been error.
    
      a. As to the defendant’s negligence: it was for the jury to determine the rate of speed at which the defendant’s car was running round this curve—and there was evidence tending to show that it must have been running even faster than at the rate of six or seven miles an hour. And it was for them to determine whether or not it was negligence on the part of the defendant’s servants, who had the control and management of their car,- to run it at such a speed, in such a place, and, thus running it, to shout to an approaching pedestrian, whether man or boy, to get out of the way, before he was in it. And it was for them to determine whether or not these agents of the defendant, in thus running this car around this curve, used proper care and diligence in looking out for such persons as might be endangered by its sudden and rapid apprpach. And it was for them to determine whether or not these agents of the defendant used proper care and diligence in stopping the car when they saw this boy stricken down by the horses and being trampled under their feet.
    5. As to the question of contributivo negligence:
    1. If there was no direct evidence showing affirmatively that the deceased did use the ordinary and proper care and caution required of him, in order to maintain this action; yet from all the surrounding facts and circumstances, in connection with the usual habits, conduct, and motives of men, the jury might infer the exercise of such care and caution. The absence of contributive negligence must indeed be proven. But “ the circumstances may show, without other evidence, that there was no contributing negligence on the part of the injured party” (Warner v. The N. Y. Cen. R. R. Co., 44 N.Y. 466, 471; Johnson v. Hud. R. R. R. Co., 20 N. Y. 66, 70, 71, 73).
    
      2. But in this case there is direct evidence showing affirmatively that the deceased did riot contribute, by any negligence on his part, towards the accident, which cost him his life. The defendant’s own witness testifies that he, the deceased, was outside the track as this car came dashing towards him, and the driver hallooed to him to get out of the way; and that thereupon he tried to get out of the way, but was frightened by the shouts of the driver, and so frightened and bewildered that he ran towards, instead of from the horses.
    
      c. In cases of this kind the general and almost invariable rule is that these questions of negligence must be left to the jury (Ernst v. Hud. R. R. R. Co., 35 N. Y. 9, 38, 40 ; Ireland v. Oswego R. R. Co., 13 N. Y. 526, 533 ; Sheridan v. Brooklyn and N. R. R. Co., 36 N. Y. 39, 43; Keller v. N. Y. Cen. R. R. Co., 24 How. 172, 176, 182).
    
      Second. The defendant’s counsel requested the court to charge “that if the jury should find that the deceased was not sui juris, or not of that age and intelligence that-it was safe to trust him. in the streets unattended, then it was negligence on the part of the plaintiff to send the deceased into the streets as he did, and the verdict must be for the defendant.” The court refused so to charge, and the defendant excepted. This refusal to charge was not error.
    Whatever might have been the age or intelligence of the deceased—eight years, or one; sui juris or not—so long as Tie actually did, whether by intention or accident, exercise proper and sufficient care, his father’s negligence cannot be imputed to him (Ihl v. 42d St. R. R., 47 N. Y. 316).
    
      Third. The court also charged the jury as follows : “ But there is another contingency which you must “look at. Suppose, gentlemen, the boy was standing “two feet, three feet, or on the curb by the side of the “rails, and suppose at that time the car was going at an “imprudent rate of speed; then suppose that the cry “ of the driver (if he made a cry at that time,) in connection with the rate of speed, at which the horses were “going, was such that a person of ordinary prudence “would be disturbed by it, his calmness of mind destroyed ; and that as a matter of fact the fright or be“wilderment of the boy (treating him as a man of ordi- ‘ ‘ nary prudence) was such that it caused him to run “upon the track; in that case, although you find that “the act of the boy contributed to the accident or in“jury which afterwards occurred, you will find a ver- “ diet for the plaintiff.”
    To this portion of the charge the defendant excepted. It was, however, manifestly just and proper (Ernst v. Hud. R. R. Co., 35 N. Y. 9; Corelton v. Am. Mer. Union Ins. Co., 5 Lansing, 7).
    
      Fourth. The amount of the verdict was not excessive (Coleman v. Southwick, 9 John. 43 ; Whipple v. Cumb. Man. Co., 2 Story, 661; Higgin v. Coffin, 3 Story, 1; Thurston v. Martin, 5 Mason, 197; Wooster v. Proprietors, etc., 6 Licit. 547; Metz v. Second Av. R. R. Co. 2 Robt. 357; Filley v. Hud. R. R. R., 29 N. Y. 252).
   By the Court.—Monell, J.

It is entirely clear, I think, that when the plaintiff rested his case, there was •not sufficient evidence either of the negligence of the defendant, or of an absence of concurring negligence on the part of the child, to have warranted a verdict in his favor. He had not given any evidence of the manner in Avhich the accident occurred. Hone of his witnesses saw the boy until he was under the horses’ feet or beneath the car. How he came there did not appear; whether by sheer recklessness of his own, or how otherwise, none of the witnesses could or did say. All or some of the circumstances and facts which should have been shown to satisfy the law that the boy had not contributed by his own fault to the accident, were omitted; and it was left, I think, wholly to conjecture whether he was or was not in fault. Certainly there was no affirmative proof which would have authorized the jury at that stage of the case, in finding that the boy was free from fault.

Again, when the motion was made there was no sufficient proof of any negligence of the defendants. The evidence was, that the car was turning into a street; going ■at its usual rate of speed, and the boy first seen under the horses’ feet. It did not appear that he was or could have been seen by the driver or conductor, or that by the exercise of any care the misfortune might have been averted. Indeed, I think the case was quite destitute of satisfactory evidence to excuse the boy or to •charge the defendant, and had the learned judge granted the motion we would have felt constrained to have sustained his judgment. But his denial of the motion . raises another and different question.

It is claimed by the respondent that although the plaintiff’s evidence may have failed to come up to the standard of proof required, yet inasmuch as the defect was afterwards supplied, the exception is unavailing. That is undoubtedly so; and the court will not disturb a verdict on the ground of insufficiency of proof, when a motion to non-suit was made, if the deficiency is afterwards supplied (Kent v. Harcourt, 33 Barb. 491; Schenectady & S. P. R. Co. v. Thatcher, 11 N. Y. R. 102). It becomes necessary, therefore, to see whether such deficiency was afterwards supplied.

The principle which requires a plaintiff to establish affirmatively that he did not contribute by his own fault to the injury, does not render it necessary that such proof should be given in the first instance ; but it will be sufficient if when the case goes to the jury it is not infirm in that respect.

And if from the whole of the evidence the jury can be satisfied there was no contributive negligence, their verdict will be upheld.

This deduction was made from the cases in Williams v. O’Keefe, (9 Bosw. 536, 538, affirmed by the Court of Appeals), and the rule has not since been changed.

Nor need the proof be direct and positive. The jury may look at the facts and attending circumstances, and determine from them the question (Warner v. N. Y. Central R. R. Co., 44 N. Y. R. 465, 481); and in one case (Johnson v. Hudson R. R. Co., 20 N. Y. R. 71) the court say the jury may regard the disposition of men to take care of themselves and keep out of difficulty as an element tending to negative the charge of contributive negligence.

A bare presumption is not sufficient (Button v. Hudson R. R. R. Co., 18 N. Y. R. 248). There must be some tangible proof, or the attending circumstances must be such as to show the party was not in fault. Then it becomes a question for the jury.

The motion for a non-suit was renewed at the close of all of the evidence, on the ground that the deficiency in the plaintiff’s case had not been supplied; in other words, that it had not been shown that the deceased was free from contributive negligence. And whether we look at it in the light of an exception to the refusal to non-suit.on■ that ground, or as a motion founded on the weight of the whole evidence, the result will be the same. There was sufficient evidence of contributive negligence to prevent a recovery.

This decision is not put upon the ground that the burthen being upon the plaintiff, he had failed to furnish sufficient affirmative evidence exculpating the deceased from fault; but upon the ground that the defendants have abundantly proved that the deceased was in fault; and that to his own misconduct may justly be attributed his death.

The court correctly charged that an infant, even of the tender age of the deceased, was to be held to the same degree of care and prudence that should be exercised by one of more mature years.

How, applying that rule to this case, what does the evidence disclose % Why, that as the car was passing around the curve the boy was close to the track (one witness says within three feet); the driver hallooed to him ; he tried to run out of the way, became bewildered, and ran under the horses. Another testified that when the driver hallooed the deceased was standing with his face towards the car ready to run,—he started across the track. Another said the boy was standing on the curbstone when the car came around the curve; he started at an angle and ran ahead of the car ; he made across to head the car off, and he ran into the horses.

This evidence was furnished by the defendants, and. no further evidence was furnished by the plaintiff, and from it, it must be seen, I think, that not only does it fail to supply the defect in the latter’s case, but that it establishes, affirmatively, that the death of the child was chiefly attributable to his own imprudence.

Is it probable, looking at the occurrence as we now must in the light of all the evidence, that this great misfortune would have happened, had that degree of care been observed that is ordinarily practised by a prudent person ? Even ignoring all or most of those rules which require persons crossing tracks of railroads to use their faculties, to look about them and to listen, we yet find .the conclusion almost forced upon us that the deceased recklessly attempted to cross the street in front of the car horses, and then it was that he became bewildered.

All this could be excused were it not for the inflexible rule of law'that holds an infant to the same prudence as is required of an adult. A youth might not be able to discover impending danger as readily or as surely as could one of mature age, and so he might take greater risks and make bolder dashes, feeling secure and confident in his ability to escape. But the law makes no exceptions ór distinctions. If any of the acts would be characterized as reckless or careless in a person of ordinary prudence, they must be so characterized in a person even of the tender age of the plaintiff’s child.

In looking at all the evidence in this case, and giving to it, as well as to all surrounding circumstances, a view most favorable to the plaintiff, I cannot avoid the conclusion that it establishes such a want of care on the part of the deceased as should have procured a different result at the hands of the jury, whose large if not excessive verdict would seem to indicate a bias and prejudice against the defendant, rather than a just conclusion from the evidence.

The result I have reached has rendered it unnecessary to examine the evidence (if any there is) bearing upon the defendant’s negligence. It is sufficient that there was contributory negligence on the part of the deceased, and for that reason I am of the opinion that the defendant’ s motion to dismiss the complaint ought to have been granted.

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

Barbour, Oh. J., and Freedman, J., concurred.  