
    SCOTTI et al. v. BEHSMANN et al.
    (Supreme Court, General Term, First Department.
    November 16, 1894.)
    Negligence—Evidence—Running Over Person in Street.
    It is error to dismiss the complaint where it appears that the person injured, a boy about nine years old, was crossing a street, when defendant’s wagon, which was being driven along a cross street, suddenly and without warning turned into the street which the boy was crossing, and ran over him, though it also appears that when the boy was shouted at he jumped in front of the horse, instead of drawing back and allowing it to pass.
    Appeal from circuit court, New York county.
    Action by Carlo Scotti and Charles Viola, as administrators of Benedicto Scotti, deceased, against George Behsmann and others. From a judgment dismissing the complaint, plaintiffs appeal. Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    W. K. Hall, for appellants.
    J. A. Hodge, Jr., for respondents.
   VAN BRUNT, P. J.

This action was brought to recover damages for the killing of the deceased by a vehicle belonging to the defendants. The deceased was a boy nine years old. He was proceeding, with others, up 1st avenue, in the neighborhood of 103d or 104th street; and, the party desiring to cross the street in their progress along the avenue, the boy went ahead of the rest, and was upon the cross walk, crossing the street, when some of the others-saw a cart coming through the avenue, which, without giving any-warning, suddenly turned around the corner of 104th street, going on a little trot, the boy being about two or three feet away from the cart. He was called to, and started ahead in front of the horses, and was struck and killed. Upon this state of the evidence, the court dismissed the complaint. This, we think, was error. The deceased was going along the avenue, and crossing at the cross walk. He had no reason to anticipate that any vehicle upon the avenue would turn suddenly across the walk without giving any warning. It is claimed, however, that the evidencé shows that when the deceased was called to he ran in front of the horses, and it was because of this the accident happened. But it is apparent that the vehicle was right upon him when his attention was called to it, and that this was a spasmodic effort to preserve himself from a situation of danger, in which he had been placed without any fault or negligence upon his own part; and, if he did not do exactly the right thing in order to avoid the danger, that does not make him guilty of contributory negligence. It was the duty of the driver of this vehicle, when turning around this corner, to have given those people who were crossing the street some opportunity of escape from a vehicle which they had no reason to suppose was going to interfere with them. It was the duty of the driver, under these circumstances, to see that the cross walks were clear before he turned into the street, and not to ruthlessly ride down any pedestrian who might be happening to be pursuing his course along the avenue at the intersection of the street. The judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.  