
    Lena Levy, Adm’rx, App’lt, v. The Dry Dock, East Broadway & Battery R. R. Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. NEGMeEITCE—Stbeet baileoads.
    Plaintiff’s intestate, a cliild about four years old, was run over by one of defendant’s cars. The evidence tended to show that the driver of the car, which was a one-horse car, had his face turned towards the inside of the car, and that he did not turn to look forward until attracted by the cries of people on the sidewalks. Held, that the jury would be warranted from, these facts in finding that the driver was guilty of want of care in the management of the car.
    2. Same—Contributory negligence.
    The child’s father was on the sidewalk talking to another person, but facing in the direction of the child, and it appeared that he ran to her assistance as the horse was about reaching her. Held, sufficient to warrant a jury in finding that the child was sufficiently guarded by the observation, of her father to avoid the charge of negligence on his part, and that a dismissal of the complaint was error.
    Appeal from a judgment on the dismissal of the complaint at the circuit
    
      Christopher Fine, for app’lt; John M. Scribner, for resp’t.
   Daniels, J.

This action was commenced by Lewis Levy, as administrator of the estate of his daughter, Sarah Levy, who was run over by a car of the defendant on Bast Broadway on the 30th of August, 1885, and from the injuries then received she soon afterwards died. The administrator died after the commencement of the action, and it was then revived in favor of the plaintiff, as administratrix, who is the mother of the intestate.

The injury was received by the child near six o’clock on a Sunday afternoon while the car was moving in an easterly direction at an ordinary rate of speed. The child who was killed resided with her parents on the northerly side of the street between Pike and Bulgers streets. She was then three years and ten months, old, and from the evidence appears to have been as intelligent and observing as healthy children usually are at that age. She had passed over to the southerly side of the street, and was in the act. of returning, and near the northerly rail of the defendant’s railway, when she was knocked down by the horse and run over by the forward wheel of the car, and was under the hind wheel when she was removed by her father, who was near his residence and in the street at the time, facing southwardly.

The witnesses agreed in their evidence that the driver of the, car, which was a one horse car, had his face turned towards the inside of the car as the horse approached the line on which the child undertook to cross the track, and that she was then from twenty to thirty feet from the horse.. At least the jury could very consistently from the evidence which was given find these to be the facts, and that he did not turn his head, to be able to look forward, until he was admonished by the halloing of persons on the sidewalk, who had observed the child and that she was in immediate danger from the proximity to her of the horse that was drawing the car. From these facts the jury would also be warranted in finding that there was a want of proper care on the part of the driver in the management and progress of the car, which was then moving on a down grade towards Butgers street. And in the disposition of this appeal the court is at liberty to believe that they would have found that fact in the plaintiff's favor, as she is entitled to every favorable inference supported by the proof on account of her complaint being dismissed and the case withheld from the jury.

The still more critical inquiry remains, whether the evidence was such as to enable the child, or more properly her parents, to escape the imputation of negligence, or want of care on their part. The child was stated by her mother to have possessed uncommon intelligence for her age, and to have been smart like a girl of ten years of age. And if that was a correct description of her, the jury might or might not have considered her careless, in trying to cross the track when the horse was so near to her. It would not necessarily be negligent, for a girl of ten years could very well cross the track safely when she was twenty feet away from the horse as she reached the first rail. But they would not be obliged to accept that evidence as strictly correct. For the age of the child, and the evidence given by other witnesses who knew her, indicated the fact to be that she was very much as other children áre at the same age, and in the possession of sound health. And if she was, then negligence could not necessarily be attributed to her at her age for attempting to cross the track as she did. But it might be negligent for her parents to permit her to be in the street where she would be in danger from the cars which passed this point after frequently running intervals, Kunz v. City of Troy, 104 N. Y., 344; 5 N. Y. State Rep., 642; but it was not necessarily so under the evidence given at the trial. For the jury could very well conclude that her father was looking after her, although he was talking to another person on the northerly sidewalk of the street This person testified that Levy was near the hall to his residence, with his back towards it, looking towards the witness. And if that statement is correct, then he was in a position at the same time in which he would be able to watch, and in a condition to assist the movements of the child. And that he was probably looking after her is confirmed by the fact that he ran to her assistance as the horse was about reaching her, or had pushed her over. But his effort was unavailing, for the wheel of the car was about passing over her as he reached and endeavored to arrest the progress of the horse. There was further evidence also given by two of the witnesses that there was a boy with her, who was apparently five or six years old, as she reached the track, but who ran away after she commenced to cross it. Others saw no boy, but on the evidence of the two who testified they saw him with this child, it was for the jury to decide which was right, and if the boy was present, how far that might indicate the observance of care on the part of the father of the child, who was standing on the walk and facing in the direction from which the child must take in her attempt to re-cross the street.

With this evidence before the court, the case was not one for a dismissal. It was for the jury to consider and decide it, and not for the court. Birkelt v. Knickerbocker Ice Co., 110 N. Y., 504, 506, 507; 18 N. Y. State Rep., 130; Hylands. Yonkers R. R. Co., 22 N. Y. State Rep., 100; Murphy v. Orr, 96 N. Y., 14. The driver had reason to believe that children would be in the street ón a fine Sunday afternoon, as that is proved to have been, and he should have made a reasonable outlook for and to avoid them. That the jury had the evidence from which they could find he did not do, and that the child herself was sufficiently guarded by the observation and oversight of her íathér to avoid the charge of negligence on his part, and that she would have escaped all danger of injury if the driver had been as watchful as the law required him to be in the progress of his car. Upon both of these contested matters of fact the case was for the jury, and should not have-been dismissed by the court.

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

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