
    Gerd Buscher, as Administrator, etc., of John T. Buscher, Infant, Deceased, Appellant, v. New York Transportation Company, Respondent.
    
      Negligence — death of a boy run oxer by ay automobile — evidence requiring the questions as to negligence and, freedom from contributory negligence to be submitted to the jury — right of a pedestrian to assume that care will be exercised in turning a corner— ca/re required of an infant, when a question for the jury.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, a boy eight years and three months of age, who was run over and killed by the defendant’s automobile at the corner of Fortieth street and Tenth avenue in the city of New York, the plaintiff gave evidence tending to show that immediately prior to the accident, the automobile was traveling rapidly on Fortieth street; that it turned northward into Tenth avenue without slackening its speed and without giving any signal of its approach; that two persons who crossed the street ahead of the automobile were obliged to hurry in order to get out of its 'way: that at that time the intestate was about fifteen feet north of the corner of Tenth avenue standing on the sidewalk; that as the two persons mentioned crossed the street with their backs towardjhe, automobile, they heard a scream, turned and saw one of the hind wheels of the automobile passing over the boy’s body about two feet distant from the curb.
    
      Held, that the evidence was sufficient to require the submission to the jury of the questions of the defendant's negligence and of the intestate’s freedom from contributory negligence, and that it was improper for the court to dismiss the complaint;
    That the intestate had the right to assume that the operator of the automobile, in turning the corner, would exercise care and respect the rights of pedestrians;
    That while it is true that an infant, even of tender years, must be held to the exercise of some care in crossing a street, yet where he is under twelve years of age and it ddes not appear that he was entirely lacking in care, the question whether or not he was guilty of contributory negligence is one of fact for the jury and it is improper for the court to determine that question as matter of law.
    Appeal by the plaintiff, Gerd Buscher, as administrator, etc., of John T. Buscher, infant, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of January, 1905, upon the dismissal .of the complaint by direction of the court after a trial at the- New York Trial Term, and also from an order entered in said clerk’s office on the ■ 20th day of January, 1905, denying the plaintiff’s motion for -a new trial made upon the minutes.
    
      Oswald N. Jacoby, for the appellant.
    
      Ralph G. Miller, for the respondent.
   Hatch, J.:

The action is brought to recover damages for the death of plaintiff’s intestate which, it is averred, was occasioned by the negligence of the defendant. It was admitted upon the trial that the decedent, a child eight years' and three months of age, was killed by being run over by an automobile operated and controlled by an employee' of the defendant; that the accident happened at the corner of Fortieth street and Tenth avenue, in the city of New York, on the 14th day of April, 1902;. that the .automobile was the property of the defendant, and that at the time the employee operating it was engaged in the defendant’s business. At the close of the plaintiff’s case the court dismissed the complaint upon the ground that there was no evidence tending to show the absence of negligence contributing to the injury upon the part of the deceased.

The evidence would have authorized the jury to find that the deceased was a bright, active boy, capable in some degree of caring for himself while on the street. The proof upon the part of. the plaintiff tended to establish that the automobile was running at a very rapid rate of speed westward on' Fortieth street; that as it reached the corner of the street it turned northward into Tenth avenue without slackening its speed and without giving any signal of its approach. Two witnesses crossed the street ahead of the automobile before the accident happened, and were obliged to hurry to get out of its way. At that tim.e the boy was about fifteen feet north of the corner of Tenth avenue, standing on the sidewalk. As: the witnesses crossed the street their backs were toward the automobile, and almost immediately they heard a scream, turned and saw the hind wheel of the automobile passing over the boy’s body, about two feet distant from the curb.

We think the evidence was sufficient to justify a finding that the. defendant was guilty of negligence in the operation of the automobile ; and we are also of the opinion that the question was for the jury as to the contributory negligence of the deceased. A person, whether adult or infant, had the right to assume that the defendant in the operation of the automobile would exercise care and respect the rights of pedestrians when it had occasion to turn the corner of the street. Due care in its operation required, under such circumstances, that the vehicle should be sjowed down and operated with caution. At such place the operator was bound to take notice that people might be at the crossing or entering thereon, and this obligation upon the part of the operator of the machine was one which a pedestrian would have a right to assume would be observed. Upon the proof the jury were authorized to find that the operator of this machine exercised no care whatever in turning the corner of the street where the accident' happened. Under such circumstances, whether the deceased was guilty of contributory negligence, or whether his act constituted the proximate cause of the accident, was a question of fact for the jury. (Costello v. Third Ave. R. R. Co., 161 N. Y. 317.)

In McDonald v. Met. St. R. Co. (80 App. Div. 233) it was held by a unanimous court that “ in the case of infants under the age of twelve years the burden of proof is upon the defendant to show the possession by such infant of sufficient mental capacity to understand, appreciate and guard against the situation in which it is placed, and the plaintiff may rest in respect of such question upon the legal presumption which protects the infant from the imputation of negligence, unless it be a case where the negligence of the infant is imputable to the parent.” There is no question in this case of negligence imputable to the parent. While it is true that an infant, even of tender years, must be held to the exercise of some care (Adams v. Nassau Electric R. R. Co., 41 App. Div, 334), yet in the case of an infant under twelve years of age, whether he be guilty of contributory negligence cr not, where it does not appear that he was entirely lacking in care, becomes a question of fact for the jury, and it is error for the court to determine such question as' matter of law.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment and order reversed, new trial ordered,' costs to appellant to abide event.  