
    ANNIE BARRETT, an Infant, by Guardian., etc, Appellant v. GEORGE WALDO SMITH, et al., Respondents.
    
      Negligence, action for damages caused therefrom.
    
    
      Held, that to sustain the action the plaintiff was bound to show affirmatively that negligence on the part of defendants’ driver was the proximate cause of the injury, exclusive of any other primary cause. Negligence is never presumed or inferred from the fact that an injury has been sustained. Therefore, whenever the fact appears that the injury was occasioned by one of two causes, for one of which the defendant is notresponsible, while for the other he is responsible, the plaintiff must fail unless the evidence shows that the injury was produced by the cause for which defendant is responsible, and he must fail also if it appears from the evidence that it is just as possible that the injury was caused by the one as by the other. Also held, that the injury in this case was the result of an unavoidable accident, and the evidence insufficient to establish actionable negligence on the part of the defendants.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 4, 1891.
    Appeal from a judgment dismissing the complaint with costs.
    
      Richard O. Gorman, Jr., for appellant, argued :
    I. On this appeal it is only necessary to consider whether there is such evidence as would justify a jury in finding that the driver was guilty of negligence, and that his negligence caused the injury complained of. The learned trial judge dismissed the complaint solely on the ground that there was a failure to prove negligence on the part of the defend^ ants. In his opinion he states that the negligence of the child cannot be considered and the negligence of the child’s .parents cannot be imputed to the child. In other words, if the child was hurt through the negligence of the defendants, she is entitled to recover. Taking the view of the law most favorable to the. defendants, the question as to the parents’ negligence was for the jury. Prendergast v. N. Y. C. & H. R. R. Co., 58 N. Y. 652; Mangam v. Brooklyn R. R. Co., 38 Ib. 455 ; Birkett v. Knickerbocker Ice Company, 110 Ib. 504 ; Weil v. D. D. E. B. & B. R. R. Co., 119 Ib. 147; Ames v. B. & S. A. R. R. Co., 56 N. Y. Superior, 3.
    II. The plaintiff, upon this appeal, is entitled to the most favorable inference deducible from the evidence ; and when the evidence is conflicting, and different interpretations or inferences may be drawn therefrom, it is the province of a jury to pass upon the questions involved. Belton v. Baxter, 58 N. Y. 411; Hart v. H. R. B. Co., 80 Ib. 622 ; Greany v. L. I. R. R. Co., 101 Ib. 423; Kunz v. City of Troy, 104 Ib. 352.
    _ ... III. The was non sui juris, and no negligence of hers, even though it contributed to the evil, can bar her recovery in this action. The learned trial judge evidently so held, and this doctrine has been established by repeated decisions. An infant three or four years of age is not to be deemed sui juris, and is incapable of forfeiting his remedy against a conceded wrongdoer by reason of his own personal negligence. Mangam v. Brooklyn R. R. Co., supra. This principle is founded upon the natural disability of so young a child. An infant of such tender age is so helpless, so wanting in discretion, so inclined to misapprehension, so subject to fright and so incapable of using any judgment whatever in the face of apparent danger, that, as matter of law, no care or prudence can be from her.
    IV. The driver, when he first saw the plaintiff, owed to her the duty of exercising a very high degree of care. The plaintiff was manifestly a child, too young to expect from her intelligent or efficient care of her person. When at a distance the driver saw her by the wall in this exposed position, it then became his duty either to pass to the right-hand side of the street in obedience to the law of the road, and thus entirely avoid the child, or to reduce his speed to such a pace as would enable him to speedily and effectually stop or control his horses. In the case of Birket v. Knickerbocker Ice Co., the court, at general term, says: “In a populous city, one driving a vehicle must always be on the alert to discover foot passengers and especially to look out for children” (3 N. Y. Slate Reporter, 134). This decision was affirmed by the Court of Appeals, 110 N. Y. 504; Stone v. Dry Dock R. R. Co., 115 Ib. 104; Murphy v. Orr, 96 Ib. 14.
    V. There was such evidence as would justify a jury in finding that the driver was negligent. The complaint alleged that the driver did carelessly and negligently drive and manage the horses and truck, and did drive them with greater speed than at the rate of five miles an hour, in violation of a city ordinance, which fixed that rate as the extreme limit of speed. The ordinance had no doubt for its object the safety of foot passengers on the public streets, recognizing the fact that a high rate of speed causes fright, and deprives the driver of complete control over his horses. The violation of such an ordinance is evidence of negligence. Beisegel v. N. Y. C. R. R. Co., 14 Abb. N. S. 34; McGrath v. N. Y. C. & H. R. R. Co., 63 N. Y. 530; Massoth v. D. & H. C. Co., 64 Ib. 532 ; Knupfle v. Knickerbocker Ice Co., 84 Ib. 490. Driving at an unusual rate of speed is negligence. Hill v. N. A. R. R. Co., 109 N. Y. 242; Stone v. Dry Dock R. R. Co., supra; Birkett v. Knickerbocker Ice Co., supra. In the case at bar, the evidence is that an ordinance was violated and that the horses were driven at a high rate of speed. James Reilly testifies that the horses were going at the rate of six miles an hour and says that they were going faster than his horse could go, although at the time he was driving in a light wagon, and his horse was a fast one. He says that he had to pull to one side to allow defendant’s team to pass him. Mary Barrett testifies that the horses were flying up, that they were going as fast as they could go. The front leg of the horse knocked the child down, yet the front and hind wheels of the wagon passed over her and the wagon went on, leaving the child lying bleeding on the street. From these facts a high rate of speed may be inferred. The driver also violated the law of the road in keeping to the left hand side instead of to the right. This has been held to constitute negligence. But the negligence of the driver does not consist only in that he drove at an unlawful or high rate of speed, or that he violated the law of the road, but that he drove at that rate and in violation of that law, close to and among a number of children, one of them less than four years old, and at a distance of only three feet from a high wall which prevented them from escaping in the direction which a person in their position would instinctively believe the proper one. Oelerich v. N. Y. Condensed Milk Co., 24 N. Y. State Reporter, 699. The day was clear, the avenue was empty, and there was no obstruction to prevent the driver from seeing the exact position of the children. He entered the avenue at One Hundred and Second street, six blocks away. Taking all these circumstances in connection with the violation of the ordinance, there was clearly evidence from which a jury might find negligence on the part of the driver. Durant v. Lipsius, 5 N. Y. St. Rep. 841; Wandell v. Corbin, 38 Hun, 391; Moebus v. Herrmann, 108 N. Y. 352; Birkett v. Knickerbocker Ice Co., supra ; Oelerich v. N. Y. C. M. Co., supra.
    
    VI. No act of the plaintiff is a bar to her recovery, unless that act was of so unusual a nature that the driver, as a man of reasonable prudence, could not have anticipated it. The learned trial judge has considered the plaintiff non sui juris and incapable of performing an act which could be considered negligence. To hold that such a child cannot recover, if an act on her part natural to her youth and indiscretion has contributed to the injury, is practically to take from her all advantage which the law intended she should have in pronouncing her non sui juris. The true rule is that if the act of the child is so unusual and so unnatural that it cannot, in the ordinary course of events, be anticipated, then that the act is a bar to its recovery. But when the act is one natural to its years, and arises as a natural consequence from the circumstances of the case and the negligence of the defendant, the act should have been anticipated and guarded against.
    VII. The negligence of defendants’ driver caused the injury complained of. The argument on behalf of the respondent will undoubtedly be, as it was on the trial, that the evidence shows that if the plaintiff had stood still the team and truck would have passed her by without touching her, and that if she had done as the other children did, and had drawn herself close up to the wall, she would have escaped uninjured. . That, in her fright, instead of doing either of these things, she placed herself in front of the horses, and therefore it was her act and not the act of the driver which caused the injury. It must be remembered that the child was placed in a sudden and perilous, exigency; and the question is not whether she did the wisest thing possible under the circumstances, but whether she acted as might have been expected from a child of her age. The position called for immediate action. When she turned to the wall she saw the other children crouched up against it, and she might well doubt whether safety lay in that direction. And it is clear that whatever movements she made were made in the space of the three feet between the truck and the wall. The duty of drivers in the public streets is to use care to prevent coming in contact not only with foot passengers who are directly in the path of the vehicle, but also foot passengers whom, under the circumstances, a reasonable man would expect to come in front of it. So, if a driver sees a passenger about to cross the street and does not stop his horses in time, it is negligence. Moebus v. Herrmann, supra. Where a child nine or ten years old was crossing a street and stopped two feet from the car track, with her back to it, to call her companions to follow her, and suddenly turning and attempting to cross, ran behind the horses and was struck by the dashboard of the car and run over, it was held that a nonsuit was error. The opinion says that the driver was not to expect the same prudence on the part of the child that he might look for from an older person. Mallard v. Ninth Ave. R. R. Co., 27 N. Y. St. Rep. 801. So, where an excursion train was left standing for some time opposite what had the appearance of a station, and the plaintiff leaving the train to look for water was struck by a locomotive on an intervening track, the court said that the railroad company should have anticipated the possibility of the passengers leaving the train, the day being hot and the train being crowded. Wandell v. Corbin, 38 Hun 393. The question in the case at bar is whether the driver, seeing the ■ child and her exposed position at a long distance off, should, under all the circumstances of the case, have anticipated that she would become frightened, and that in her efforts to escape she would act, like a child of her years, blindly and foolishly, and might come in the path of the horses. This surely was a question for the jury. They had the plaintiff before them, and could consider what effect her appearance would have upon the mind of a man of ordinary prudence. The rule which has been applied to plaintiffs in personal injury cases, that they are negligent if they depend upon the result of a nice calculation to save them from damages, might well be invoked in considering the conduct of the driver and his duty towards the child. Fright was the natural and necessary result of his conduct. One who has caused an injury .to another by failing to perform a duty cannot relieve himself of liability by showing that some cause arising out of such failure has' contributed to produce the result complained of. Hardy v. City of Brooklyn, 90 N. Y. 435. Considering all the testimony and the fact that after the collision the driver drove on (according to the witness McLean) without stopping, a jury might well have found that the driver had failed to look before him and had not seen the children at all. To believe otherwise it is necessary to consider him guilty of inhumanity and heartlessness difficult to comprehend. If, however, he failed to look before him, and by this violation of duty brought about the accident, he was equally guilty of negligence.
    
      James A. Seaman, for respondents, argued :—
    I. The nonsuit was put by the judge on the ground that negligence of defendants had not been proved, and that even if there had been some evidence of negligence on the part of their driver, the sufficient (and only) evidence showed also in connection therewith that the accident was not necessarily to be accounted for on the ground of such supposed negligence, but was as reasonably to be explained on the ground of the child’s act (running at the horses), of which there was ample proof, and of which there was absolutely no contradiction.
    II. There was no substantial proof of any negligence on the part of the driver. Neither the court nor the jury could be at liberty to infer negligence from the fact of the accident. Bulger v. The Albany Railway, 42 N. Y. 459; Henderson v. Knickerbocker Ice Co., 5 N. Y. Supplement, 909; Terry v. N. Y. Central R,. R., 22 Barb. 574; Fenton v. 2d Ave. R. R. Co., Court of Appeals, N. Y. Law Journal, March 17, 1891. There was no evidence tending to show negligence on his part, except the declaration of two or three witnesses that the horses were going fast, and the only evidence which could reasonably be considered as to the rate of speed was that of Mr. Reilly who was . following the truck. He testified that the truck was going faster than the ordinance allows, but his testimony was so self-contradictory, and involved him in such astonishing absurdities of statement, that neither judge nor jury would have been justified in believing his assertion that this heavy and heavily-loaded, truck was moving at any such rate of speed.
    III. It is to be noted that the claim of contributory negligence on the part of the child or her mother did not enter into the judge’s reasoning by which he sustained his conclusion. He expressly discarded it. The ground upon which it was sustained was this: It would be necessary to show that the driver was guilty of negligence, and this was not shown. But even conceding that it was shown that he was negligent, it' was necessary to go further and to - show that such negligence was the cause of the accident, and upon this point there was an utter failure of proof. Moreover, .there was evidence that the accident was caused by the child’s own conduct—her running towards the horses—and this evidence was absolutely undisputed. He did not nonsuit on the ground that negligence of the child contributed, but because it was the direct cause, so far as the evidence showed, and because no negligence on the part of the driver was shown to have contributed in the least to the result. This reasoning, it is urged, is irresistible.
    
      IV. As a general principle, when the fact is that the injury is occasioned by one of two causes, for one of which the defendant is not responsible, and for the other of which he is responsible, the plaintiff must fail unless his evidence shows that the injury was produced by the former cause, and he must fail also if it is just as probable that it was caused by the one as by the Other, as the plaintiff is bound to make out his case by the preponderance of evidence. Searles v. Manhattan Railway Co., 101 N. Y. 661; Malone v. Boston and Albany R. R. Co., 51 Hun, 532; Wilds v. H. R. R. Co., 24 N. Y. 430, 434.
    V. It was the driver’s business to look ahead, that what went on behind him, or suddenly occurred at his side, should not have distracted his attention from his horses, and what was in front of them in this public thoroughfare. Thus the evidence, taken together, so far from proving negligence on his part, seems especially consistent with the idea that he was driving properly and with due care.
    VI. Though the court, in dismissing the complaint, did not rely on the contributory negligence of the child or the imputed negligence of the parent as contributory negligence, still if there was such contributory negligence, it is available to sustain the non-suit. And that there was such negligence on the part of the mother, the evidence makes clear. A child less than four years old is allowed to go into the street to play, not under the care of any competent person, and in fact, as the event shows, without any proper protection. In the case of Weil v. Dry Dock, etc., R. R. Co., 119 N. Y. 147, a child over two years old, in summer when doors were opened, escaped from her father’s bakery and was injured on defendant’s track. The escape of the child in that case was apparently what the court held should have carried the case to the jury. Here, however, a child but little older is expressly allowed by her mother to go into the public street to play, without any proper protection, no precautions of any kind are shown, and the accident plainly in all the facts resulted from the mother’s imprudence and the absence of adequate protection. Unless the court is prepared to abandon in toto the doctrine of imputed negligence in cases of infants non sui juris and to hold that in all cases questions of this sort must be submitted to the jury, it should hold in this case that the tender years of the child, and the permission to go into the public street to play, without proper protection, established such negligence on the parents’ part as would have justified the court in taking the case from the jury and dismissing the complaint, even if the grounds on which the nonsuit was put had been otherwise insufficient. In the case of Mangam v. Brooklyn R R. Co., 38 N. Y. 455, it is held that a child between three and four years old is to be considered non sui juris and the act of the parent, as in this case, distinctly allowing such child to go into the street to play is negligence, must be imputed under the principle of Hartfield v. Roper, 21 Wend. 615, and, of itself, justifies-the non-suit. Honesberger v. 2d Ave. R. R. Co., 2 Abb. Ct. App. Dee. 378.
   By the Court.—Freedman, J.

The action was brought by the plaintiff, an infant less than four years old to recover damages for personal injuries, the result of her being run over by defendants’ team and truck driven by defendants’ driver. At the trial the complaint was dismissed on the sole ground that the evidence was insufficient to establish actionable negligence on the part of the defendants, and the only question presented by the appeal relates to the correctness of this ruling.

The injuries were sustained by the plaintiff in Fourth avenue, between 107th and 108th streets, in the city of New York, during the afternoon of July 22, 1890. At that place the actual width of the avenue was 25 feet from the curb on the easterly side of the avenue to a stone wall on the westerly side thereof. The roadbed between the stone wall and the curb was paved for a carriage road and there was no sidewalk along the wall. It seems that a boy named Henry Peters had a bird, and in showing it to another boy it flew out of his hands and went into a little hole in the stone wall. The boys ran over to get the bird. One knelt down and put his arm into the hole and the other stood by and tried to help him. Then another boy and the plaintiff went there, and all the children were stationed around that hole in the wall when defendants’ team and truck came along. The team consisted of a pair of worlc-horses, and the truck was a heavy one and had on it a load of five tons. The roadbed on the block in question, and indeed the entire distance between 104th and 114th streets, was nearly level. The testimony as to the rate of speed at which defendants’ horses passed the point in question, varied somewhat. One witness thought they were going at the rate of six miles per hour. One of the boys said they were going fast. Plaintiff’s mother said they were flying. As a whole the testimony was unreliable and even improbable. But that presented a question for the jury, unless it appeared that the mere speed was not the real cause of the injury. To sustain the action the plaintiff was bound to show affirmatively that negligence on the part of defendants’ driver was the proximate cause of the injury, exclusive of any other primary cause. Negligence is never presumed or inferred from the fact that an injury has been sustained. So, whenever the fact appears that the injury was occasioned by one of two causes, for one of which the defendant is not responsible and for the other of which he is responsible, the plaintiff must fail unless his evidence shows that the injury was produced by the cause for which the defendant is responsible, and he must fail also if it is just as probable that it was caused by the one as by the other. Searles v. Manhattan Railway Co., 101 N. Y. 661.

All the evidence shows that, while defendants’ horses and truck passed the spot where the children were stationed, there was a space of at least three feet between the wall and the horses and truck. One witness, who apparently was the most intelligent of all the witnesses, made it even fifteen feet. There is not a particle of proof that the driver directed the horses towards the children. For all that appears he was going in a straight line, and according to the testimony of one of the witnesses he quickly swung the horses away, almost into the gutter near the curb on the easterly side of the avenue, in order to avoid coming into contact with the plaintiff, but without being able to save the plaintiff. If, therefore, the plaintiff had remained where she was, she would have been safe. The other children remained near the wall and were not hurt. But the plaintiff, at the moment the horses approached, first drew closer to the wall and then suddenly started to cross the street, and thus came into collision with the horse nearest to the side of the wall. This was something which the driver, who had the right to act upon the appearances as they presented themselves, was not bound to anticipate. If there had been something in the appearances which called upon the driver to take notice that the plaintiff would attempt to run across, a different case would be presented. But in the absence of all evidence upon the subject, the driver is not chargeable with a neglect of duty in that respect. The result is that the rate of speed at which the horses were driven, was not the proximate cause of plaintiff’s injury, exclusive of any other primary cause, and that the injury was the result of an unavoidable accident.

The question of contributory negligence in the plaintiff or her parents requires no consideration under the circumstances.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.  