
    Isaac Wolf, by his Guardian, App’lt, v. The Houston, West Street and Pavonia Ferry R. R. Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    Negligence—Street railway—When negligence is not proven.
    In an action to recover damages which the plaintiff sustained by b ing run over by a car of defendant, it appeared that the plaintiff, at the time of the accident, was eighteen months old, and, in -company with his mother, had started to cross the street, she having hold'iff one of his hands. That the defendant’s car was approaching towards that part of the street upon an up grade, the driver urging and crowding his horses. The mother did not approach the track nearer than about two feet from it, and the car passed her where she stood without injuring her, hut she was so-frightened by the rapidity of the approach of the car that she became confused, and while in that condition the child, in some manner, went upon the track and was run over by the car, and sustained the injuries complained of. It did not appear how he came upon the track and under the wheels of the car. Held, that the company was not liable.
    Appeal from a judgment dismissing the plaintiff’s complaint on trial at the circuit.
    
      Max Altmeyer, for app’lt; Charles E. Miller, for resp’t.
   Daniels, J.

The action was brought to recover damages which the plaintiff sustained by being run over by á car of the defendant, on East Thirty-fifth street, on the 28th of April, 1886. The plaintiff, at the time, was of the age of about eighteen months, and, in company with his mother, had started to cross the street, she having hold of one of his hands. The car was approaching towards that part of the street upon the up grade, and, after proceeding for a time at a moderate pace, is stated by her to have increased in its speed by the driver urging and crowding his horses. It is stated by her to have approached the part of the track which she and her child reached about the time when she expected to have crossed the track.

She held up her hand to signal the driver to stop or delay the progress of the car; but there was no act or statement on her part that could have led him to suppose that she desired the progress of the car to be slackened for any other object than to take it as a passenger. She did not approach the track nearer than about two foot from it, and the horses and the car passed her where she stood, without touching her person. But her testimony was that she was so much frightened by the rapidity of tifie approach of the car, as to-have become confused, and substantially helpless; and while in that condition the child in some manner which she could not state or explain, went upon the track and was run over by the car, breaking one of his legs below the knee- and seriously injuring the other. He was picked up in this condition at or near the rear platform of the car, but how he came upon the track or under the wheels of the car, were facts which the evidence in the case left entirely without explanation. The last that is disclosed concerning him before the accident, is, that his mother held his hand in hers, and in some unexplained way their hands were separated, and the child was Upon the track, and the accident happened.

It is clear from her statement that the accident was not caused by the speedy driving, or urging of the car. From the position occupied by the child and his mother, there was no reason for the driver to believe that the child was endangered in any manner by the progress the car at the time was making. And if his mother had continued to maintain her hold of the child’s hand, no injury to it could ppssibly have taken place, and no mismanagement or negligence therefore can be attributed to the driver, upon which the action can be maintained against the company. There was nothing in the transaction from which it could have been supposed that this woman would become terrified as she states-she did by the approach of this car, or from which it could be inferred that she would so far lose her self-possession as to endanger the safety of her child.

But that she was in this condition is stated by her in her evidence, and it was probably truthfully given by her. For if she had retained the control of her senses and experience, she would not have permitted the child to have been endangered and injured in the manner in which it was. In her agitation she probably placed the child in the perilous situation in which she first discovered it after it had become detached from her hold. But that was no fault of the driver. It was her fault, on the contrary, which could not have been expected to arise out of any fact or circumstance attending this unfortunate affair.

It is undoubtedly true that the drivers of cars, as well as of other vehicles, upon the streets of the city, are grossly indifferent to the safety of persons on foot, who are as much entitled to the use of the streets as the vehicles which are driven upon them, and they are as completely within the protection of the law as the vehicles themselves are when they are reasonably and carefully managed, and where injuries are caused to them by such inattentive driving and control of the vehicles, the owners as well as the drivers are legally liable. But the most liberal application of the principle securing that liability will not maintain this action. For in this case the accident to the child was not caused by improper conduct on the part of the driver, but by the unusual agitation of the mother, and her failure to observe her intuitive inclination to protect and secure-the safety of her child. There was nothing in the way to-prevent her from receding from the place where she stood, and in that manner to have avoided even the possibility of such an occurrence. But her failure to do so, as well as the exposure of the child to the accident, is attributed by her to her agitated state of mind. For that the defendant is-not liable, and the judgment should accordingly be affirmed.

Van Brunt, P. J., and Bartlett, J., concur.  