
    Fenton v. Second Ave. R. Co.
    
      (Supreme Court, General Term, First Department.
    
    February 14, 1890.)
    1. Horse and Street Railroads—Injury to Person’ on Track.
    . In crossing the streets of a crowded city, a party is bound to use reasonable care; and if he has ample time to get across, although a vehicle is approaching, he is not guilty of contributory negligence, if he fall in attempting to do so.
    2. Same—Negligence oe Driver.
    Where a boy, attempting to cross a street, fell some 20 to 25 feet in front of an approaching horse-car, and there was nothing to obstruct the driver’s view, the driver was guilty of negligence, where no effort was made to stop the car until the horses were upon the boy.
    Appeal from circuit court, Kings county.
    Action by Patrick Fenton, as administrator, etc., of John Fenton, against the Second Avenue Kailroad Company, to recover for the death of his intestate, alleged to have been caused by the negligence of defendant. The jury awarded $3,200, and defendant appeals.
    Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.
    
      Augustus S. Hutchins, for appellant. Wm. M. Lyddy and James M. Lyddy, for respondent.
   Van Brunt, P. J.

This action was brought by the plaintiff, the father and administrator of John Fenton, deceased, a boy of nine years of age, at the time he met his death from the alleged negligence of the defendant. It is claimed upon the part of the appellant that the deceased was guilty of contributory negligence, but that no negligence on its part was shown. The defendant operates a line of street-cars running through Second avenue, New York city. The deceased was an intelligent and smart boy, strong and healthy, and able to run around, and take care of himself; and on the 7th of April, 1888, he proceeded to cross Second avenue, from the west side to the east, a few yards from where East Twenty-Fifth street intersects the avenue. There was evidence offered tending to show that before he crossed the street he looked up and down the avenue, and that there was no obstruction in the street so that he could see any approaching car; that, at the time he attempted to cross, the car in question was some 60 or 70 feet down the avenue, and when be reached the-rail the car was 45 feet away. While he was crossing the track, his foot slipped, and he fell some 20 feet in front of the horses; and before the car was stopped he was run over, and received such injuries that he subsequently died. There was some dispute in the evidence as to the distance of the deceased from the horses at the time he fell; some witnesses placing it as near as 10 feet. There was also evidence tending to show that after the boy fell no effort was made by the driver of the car until he was struck by the horses, and that the car was not stopped until the wheels ran over the boy, and from the injuries thus received he died.

It is urged upon the part of the appellant that the evidence showed contributory negligence upon the part of the boy, and did not show any negligence upon the part of the defendant’s employes; and, in support of the proposition that the deceased was guilty of contributory negligence, the case of Belton v. Baxter, 54 N. Y. 247, is cited by the counsel for the appellant, in which the court use the following language: “ The plaintiff was guilty of negligence which certainly contributed to his injury, and this is apparent upon his own testimony. He wanted to cross Second avenue, in Fourth street, where he resided. It was near evening, but still daylight; and he saw a Second-Avenue ear, coming just above Third street, and behind it a cart, also coming. * * * He hurried on a little, and made his ‘calculation ’ that he could cross in front of the car 1 before the cart could get up.’ * * * He stepped on. The car came faster than usual. He just passed the heads of the horses attached to the car, and at that moment came in contact with the horse and cart of the defendants, * * * and received the injury. This makes out a plain case of negligence. He clearly saw the possible danger, made his calculations to pass ahead of both car and cart, and failed.1 * * * It is negligence per se for a foot-traveler to attempt to cross a public thoroughfare ahead of vehicles of any kind, under such circumstances, upon nice calculations of the chances of injury. If such attempt be made, and the calculations fail to plaintiff’s harm, he can have no redress for injuries received in his mistaken effort. It is not the exercise of ordinary or common care. ” An examination of the facts of this case show that the plaintiff there miscalculated having time enough to get across the track before the car reached him, and therefore was injured,-—entirely different from the facts in the case at bar, for the evidence here showed that, had not the boy fallen, he would have had ample time to clear the horses, and get across the track; and therefore the deceased was not guilty of negligence in attempting to cross the track, because he had ample time, as the evidence abundantly shows, to cross, and it was the misfortune of falling while attempting to cross that brought him into danger. The question, therefore, presented, would be, is everybody who crosses a street guilty of contributory negligence because he happens to fall? In crossing the streets of a crowded city, we do not think that a party is bound to wait until all the vehicles are out of the street before he attempts to cross it; for, if such a rule prevailed, he would be compelled, during the whole of his life, to stay on one side of the street. He is bound to use reasonable care under the circumstances; and where a party has ample time to get across, although a vehicle may be approaching, he is not guilty of contributory negligence in attempting to do so. That was all that the deceased did in the case at bar. The case of Motel v. Railroad Co., 99 N. Y. 632, 2 How. Pr. (N. S.) 30, in which the opinion was written by Mr. Justice Beach, and which opinion was adopted by the court of appeals, was of precisely similar character to that of Belton v. Baxter, supra. The evidence of the plaintiff in that ease was that he tried to get across; that he thought he could get across before the horses reached him, but he miscalculated the time, and had not the opportunity to get across safely before the horses were upon him,— and the court held in that case that a party, under these circumstances, must bear the burden of his own miscalculation.

The other question presented is as to the negligence of the defendants. The evidence is conflicting, as has already been said, as to distance from the horses’ heads at which the boy fell. It is put by the witnesses anywhere from 10 to 25 feet. But there was evidence from which the jury might find that, whatever the distance was at which the deceased fell in front of the horses, no effort was made by the drivers to stop the car until the horses struck the deceased, as he was trying to raise himself from the ground. Under these circumstances, if the jury should have found that the deceased was 20 or 25 feet from the horses at the time he fell, there being no obstructions in the street, and nothing to interfere with the drivers’ view, they might well have come to the conclusion that the drivers were guilty of negligence in not using the means which they had of stopping the progress of the car until the horses were actually upon the deceased. It is true there was a conflict of evidence upon this point, but there was ample evidence to justify the conclusion of the jury that due care was not used by the drivers of this car; and perhaps they may have laid some stress upon the fact that the car was in charge of a green hand, who was being schooled by an old driver, who was also upon the platform. With evidence of this character to be submitted to the jury, we do not see how an appellate court would be justified in interfering with the verdict. In fact, upon a consideration of the whole of the evidence in the case, it would appear that there had not been that degree of diligence used upon the part of the drivers of this car in attempting to stop it which the-law imposed upon them.

The learned judge presiding at the circuit presented this ease fairly to the-jury, calling their attention to what it was necessary for the plaintiff to establish in order to recover; and, as already suggested, the jury were justified, from all the evidence, in finding both that the deceased was free from contributory negligence, and that there had been negligence upon the part of the-defendant. The judgment should be affirmed, with costs. All concur.  