
    CASEY v. N. Y. CENTRAL & H. R. R. R. CO.
    
      N. Y. Common Pleas, General Term;
    
    
      February, 1879.
    Negligence.—Contributory Negligence op Child.—Nonsuit.— Evidence. —JFlagmen at Railroad Crossings.—Signals op Approaching Locomotive.
    In an action for damages for negligence, where the evidence does not show such a state of facts as will justify the court in saying, as a conclusion of law, that there was co-operating negligence on the part of the plaintiff, the case should be submitted to the jury.
    The fact of the presence or absence of a flagman at a point where a railroad crosses a street is a part of the res gesta of a collision there, and maybe proved as bearing upon the question of negligence ; so may the fact that the railroad company had been in the habit of having a flagman at the place, as tending to show negligence by the omission to have one when an accident occurred.
    A witness was asked if he was in a position where, if the bell of a locomotive engine had been rung, he could have heard it, and he answered that he was,—Held, that this was testifying to a fact and not to an opinion, for although it was for the jury to determine whether a bell was rung or not, the witness knew better than the jury could, how far he could hear the bell.
    
    A witness who saw a locomotive engine run over a person, may be asked whether any whistle was blown.
    Although the company may have usually had a flagman at a crossing, the absence of one will not excuse a person crossing the track from looking to see whether a train is approaching.
    The jury are entitled to know everything descriptive of the particular locality where an accident has occurred, and questions pertinent to that end should be allowed.
    A child should be held only to the exercise of the caution and discretion of which children of his age are presumed to be capable, and not to that which is exacted from, an adult.
    
    Signal by bell or whistle must be given by the engine on approaching a crossing.
    
      Appeal by defendants from a judgment and from an order denying a motion for a new trial.
    
      The action was brought by John Casey, administrator of his daughter, Mary Jane Casey, against The New York Central and Hudson River Railroad Cornpany, for damages, by reason of the death of the intestate, caused by the negligence of the defendants.
    On May 10, 1877, a little after 12 o’clock, noon, the deceased, who was a bright, intelligent girl, in the fifteenth year of her age, and of the weight and' size of a woman, was sent by her mother from her home in West Thirtieth street, between Tenth and Eleventh avenues, in New York city, to purchase some provisions for the family. On her return, after making the purchases, she was run down and instantly'killed by a train of defendants’ cars, consisting of a tender, loco-, motive and three freight cars, suddenly backing out of a yard, with the tender ahead, across Tenth avenue, from east to west, on the most northerly track, at the rate of from ten to twelve miles an hour, from behind the southern wall of a block of four-story houses, on the east side of Tenth avenue, between Thirtieth and Thirty-first streets, which wall prevented a person going south, down Tenth avenue, as was the deceased, from seeing the northern track or any train or car upon it, until the track was substantially reached. There was no flagman at the crossing at the.time, nor was the bell rung or whistle blown. There were many railroad tracks across Tenth avenue at the place of the accident, and trains were very frequently crossing and re-crossing. Just at the time of the accident a train of cars on the southerly track extended from the easterly side to the westerly side, completely blocking the way, and horse cars had stopped at the crossing also.
    When the evidence of both parties had all been given, the defendants moved to dismiss the complaint upon the ground that it did not appear that there was any negligence on the part of the defendants, causing the accident, and it did appear that the negligence of the deceased contributed to the accident.
    
      The motion having been denied, the judge charged, in substance, that the degree of care required varied with the circumstances ; that a railroad company must exercise the same care that a prudent person would exercise under similar circumstances ; that the greater the probability of danger the greater the degree of care required; that the law did not require the railroad company to employ a flagman in the streets of the city, but that it was always allowed to prove whether there was a flagman at a particular crossing, because the presence of a flagman might dispense with other precautions which might otherwise be necessary ; that if a bell was not rung on crossing a street, it would be guilty of negligence ; that it is the duty of a railroad company to provide a sufficient force to run the engine with ordinary care through the streets of the city ; that the deceased was bound to exercise the care and judgment which a bright girl of fourteen years of age ought to have exercised under the circumstances of the case ; that the father was entitled to recover for the loss of her services, until she was emancipated by law, and for the loss of the care and attention which he might reasonably expect to receive from her during the remainder of her life.
    The jury rendered a verdict for the plaintiff for §4,500, and the defendant appealed.
    
      
      Frank Loomis, for defendants, appellants.
    
      Christopher Fine, for plaintiff, respondent.
    Whether the defendants were guilty of negligence which caused, and the deceased or her parents guilty of negligence which contributed to the death of the intestate, were questions of fact for the jury, and having been decided in favor of the plaintiff, the appellate court will not disturb the result (Morrison v. New York Central & Hudson River R. R. Co., 63 N. Y. 643 ; Plopper v. Same, 13 Hun, 625; Weber v. Same, 67 N. Y. 587; Massoth v. Delaware & Hudson Canal Co., 64 Id. 524, 529, and cases cited ; O’Mara v. Hudson River R. R. Co., 38 Id. 445, 448; Gonzales v. Same, 39 How. Pr. 407, Court of Appeals, 418, 419). Contributory negligence is an affirmative defense, and must be pleaded and proved: the onus probandi is upon the defendant (McQuilken v. Central Pacific R. R. Co., Supreme Court of Cal., 1875, 1 Reporter, 416; Robinson v. W. P. R. R. Co., 48 Cal. 426 ; Weiss v. Pennsylvania R. R. Co., Supreme Court of Penn., 1 Reporter, 59, opinion by Sharswood, J. ; Hackford v. New York Central & Hudson River R. R. Co. 6 Lans. 381, 385, 386 ; See able opinion of Cockburn, C. J., in Jackson v. Metropolitan R. Co., Feb. 1877, Court of Appeals—English, 4 Reporter, 496). The evidence as to the ringing of the bell, blowing the whistle, and absence of the flagman was properly admitted (McGrath v. New York Central & Hudson River R. R. Co., 63 N. Y. 522-530). The company is liable for all damages occasioned by the neglect to ring the bell (2 R. S. 542, § 61, 6th Ed. ; Cordell v. New York Central & Hudson River R. R. Co., 64 N. Y. 535, 538 ; Renwick v. Same, 36 Id. 132; O’Mara v. Hudson River R. R. Co., 38 Id. 445, 447, 448). If a railroad company have been in the habit of keeping, a flagman at a crossing, his absence at the time of an accident is negligence, or evidence of negligence (Ernst v. Hudson River R. R. Co., 39 N. Y. 61). The ringing of the bell is not itself enough to relieve the company from liability ; other circumstances are to be considered (Cordell v. New York Central and Hudson River R. R. Co., 70 N. Y. 119). A question calling for the opinion of a witness, to a conclusion of fact, which it belongs to the jury to determine, should not be allowed (Barker v. Savage, 1 Sweeney, 288). Facts must be given and described, and the jury must judge and determine (Dewitt v. Barley, 9 N. Y. 371, 374-7; Morehouse v. Mathews, 2 Id. 514; Fleming v. President of the D. & H. Co., 8 Hun, 358; Allen v. Stout, 51 N. Y. 668). The evidence of experts is only necessary, and opinions, even of experts, can only be received when the question at issue involves a peculiar science or skill (Swartout v. New York Central & Hudson River R. R. Co., 7 Hun, 571; Rollwagen v. Rollwagen, 3 Id. 121; Swift v. Massachusetts Mutual Life Insurance Co., Id. 551; Cleveland v. New Jersey Steamboat Co., 5 Id. 523). Even where the testimony of experts may be 'competent, their opinions can only be asked, and their answers can only be received, as predicated upon a supposable or hypothetical state of facts. The facts must be stated to- them in the presence of the jury (Dolz v. Morris, 4 N. Y. W. Dig. 222, General Term, First Department, 1877). When evidence has been improperly excluded, if afterwards received, the error is cured, and affords no ground for a new trial (1 Graham & W. on New Trials, 255 ; Park Bank v. Tilton, 15 Abb. Pr. 384). The refusal of the court to permit a witness to answer a question is not error unless it is shown that it is material (Pratt v. Strong, 3 Abb. Ct. App. Dec. 620). Judgments will not be disturbed, or new trials granted where substantial justice has been done, and never on formal grounds (2 Graham & W. on New Trials, 47, 50, and cases cited ; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282 ; Losee v. Buchanan, 51 Id. 476, 492-3). The charge on the subject of negligence is most fully supported by all the cases now recognized as law. and by the statute (2 R. S. 542, § 61, 6th ed., and cases cited, supra). The father is entitled to services of his daughter until she is emancipated by law (3 R. S. 569, § 3, 4 [6th ed.]; O’Hara v. Hudson R. R. Co., 38 N. Y. 445, 450 ; Althorf v. Wolf, 2 Hilt. 345, aff’d in 22 N. Y. 355 ; Oldfield v. New York & Harlem R. R. Co., 14 Id. 310, 315-318 ; Tilley v. Hudson River R. R. Co., 29 Id. 252, 286-288 ; McIntyre v. New York Central & Hudson River R. R. Co., 39 Id. 289, 290, 295). If the charge as a whole conveys to the jury the correct rule of law upon a question, the judgment will not be reversed (Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282 ; Losee v. Buchanan, 51 Id. 476, 492, 493). Where the general charge of the court is sufficient, it is not error to refuse to charge special instructions (Hanall v. State, 6 Reporter, 571, Court of Appeals of Texas, June, 1878; Johnson v. Comstock, 14 Hun, 243 ; Continental Improvement Co. v. Stead, 5 N. Y. Weekly Dig. 585, U. S. Supreme Court, 1877; Buyers v. Patterson, 3 N. Y. Weekly Dig. 46, Supreme Court, Pennsylvania, May, 1876). It, is not error for the court to decline to charge in the words of counsel, a proposition already charged by it in substance (Spencer v. Humiston, 9 Hun, 71, 72). In order to predicate error in the charge or ruling of a judge, the point in controversy must be distinctly presented to the mind of the judge, and a decision made thereon (Wooster v. Sage, 67 N. Y. 72 ; Indianapolis & St. Louis R. R. Co. v. Horst, 3 N. Y. Weekly Dig., 519, U. S. Supreme Court, 1876.)
    
      
      
         See note at end of case.
    
    
      
       Note on Negligence oe Children, &c.
      The opinion of Chief Justice Daly, in the text, must be deemed to settle the question in this State in favor of the rulé laid down by him in the Honegsberger case, and to supersede the decision of the court of appeals, in that case, so. far as in conflict.
      The following recent cases illustrate the views which have been taken here and elsewhere on this point, and the kindred questions of the negligence of parents and custodians, and also of intoxicated persons, and the aged and disabled.
      I. Contributory Negligence of Children.
      
      A child under two years of age fell on a railroad track, and while there was injured by the negligence of the railroad’s employees. Held, that the child was too young to be guilty of contributory negligence. (1876, Opinion by Moncure, P.) Norfolk & Petersburg R. R. v. Ormsby, 27 Gratt. (Va.) 455.
      A child under two years of age was run over by a freight train and died from the injuries. The defendant was negligent. Held, that the rule that contributory negligence is a bar to recovery, presupposes an age of discretion, and cannot apply to an infant under two years of age. When an adult is in danger of injuring a child, he is required to exercise all the care and caution at his command. (1875, Opinion by Day, J.) Walters v. C. R. I. & P. R. Co., 41 Iowa, 71.
      A child about two years of age slipped out of the house unobserved by its mother, who was busy about her work, and having gone upon a railroad track near by, was run over by an engine and killed. Held, that a child of such tender years was clearly non sui juris, and his conduct therefore presented no bar to a recovery. (1874, Mem. of opinion by Folger, J.) Prendegast v. N. Y. Central & H. R. R. R. Co., 58 N. Y. 652.
      A child, a little over two years of age, allowed to be in the street, ran in the way of a passing car, and was injured by the negligence of the car driver. Held, that if the injury arose from the negligence of defendant, and not from want of the exercise of such care and discretion as could reasonably be expected from a child two years of age, so far as its own acts are concerned, it could recover. (1875, Opinion by Grason, J.) Baltimore, &c. Ry. Co. v. McDonnell, 43 Md. 534.
      A child, two and a half years of age, was allowed by his parents to go at large in the public streets of the city without an attendant, he stating that he was going to Ms grandmother’s, who lived near, to which place he was in the habit of going. A few hours later he was run over by an engine and tender and injured. The engineer blew the whistle, first, when about eight hundred feet and again when about one hundred feet from the child, but no attention was paid to it. Evidence tended to show that with ordinary care the engine might have been stopped before reaching the child. Held, that adults may be reasonably expected to take notice of signals and warnings, and remove themselves from danger, but in the case of a small'child, such reliance upon signals and warnings could not be reasonably indulged, and it was the duty of the engineer to act with a greater degree of care and circumspection than in the case of an adult, and that the question of the contributory negligence of the child was for the jury. (1875, Opinion by Gilbert, J.) Kenyon v. New York Central & Hudson River R. R. Co., 5 Hun, 479.
      A Child about two years and eight months of age was sent by its mother, under the protection of a sister about eight years of age, to a lot across the street to play and get fresh ah' ; but, after being there for a time, the child, unobserved by its .elder sister, escaped, and undertook to make its way home across the street, and while crossing it was run over and killed by a horse car, through the carelessness of the driver. Held, that so young a child could not be expected to have knowledge or foresight, and all that was necessary to give a right of action in the case was that the child should have exercised care and prudence equal to its capacity, and that the parents were not negligent. That the young and the old, the lame and infirm, are entitled to the use of the streets, and more care must be exercised towards them by persons controlling or managing cars and vehicles, than towards those who have better powers of motion. (1869, Opinion by Wageer, J.) O’Flaherty v. Union Rw. Co., 45 Mo. 70.
      A child three years and two months old was sent by his mother, in charge of his sister, nine and a half years old, on an errand to a drug store, which necessitated his crossing a street railroad track; in doing this he fell, was run over by a car, and killed. The driver was not looking, and both the front and rear wheels passed over the child before the car was stopped. Held, that negligence upon the part of so young a child, when there was no negligence upon the part of the parents or the attendant, would not absolve the railroad company from liability. (1872, Opinion by Rapallo, J.) Ihl v. Forty-second street, &c. R. R. Co., 45 N. Y. 317.
      A child aged three or four years, attended by a brother one or two years older, in crossing a street was injured by a passing street car. The general rule that contributory negligence bars recovery was admitted; but it was held, that a child under seven years of age is absolutely exempt from its operation. It legally can have no “independent will,” therefore it could not be guilty of a breach of duty at the time of injury, i. e. negligence. (1875, Opinion by Brickell, Ch. J.) Government street R. R. v. Hanlon, 53 Ala. 70.
      A child about four and one-half years old was permitted by the mother to accompany his brother, about twelve and one-half years of age, on an errand. They were permitted to ride on the front platform of a street car, sitting with them feet on the step. The younger one, not being firmly held by the brother, was thrown or jumped from the car while in motion. Held, that the company’s employees were negligent in allowing the younger child to so ride, notwithstanding he was in charge of his older brother. (1873, Opinion by Cooley, J.) East Saginaw City Rw. Co. v. Bohn, 27 Mich. 503.
      A child four years and six months of age, living in a quiet neighborhood in the city, where few vehicles passed, was permitted by its mother to play upon her door-steps with other boys, she watching him meanwhile as her work permitted. In a coal yard about a block off was an elevator worked by steam, close to the line of the sidewalk; and during an intermission of work, the sliding door by which it was commonly shut off from the street, was left open; and in the absence of any person to guard it, the child, having left its home unobserved by its mother, approached it, was caught and crushed by the descending car. Held, that it could not be said as a matter of law that the child was mi juris, and so capable of forfeiting its remedy against a wrong-doer by its personal negligence. (1874, Opinion by Reynolds, J.) Mullaney v. Spence, 15 Abb. Pr., N. S. 319.
      A child about four years of age was taken into the arms of a woman, to whose care it had not been intrusted, with the design of removing it out of the reach of danger, but, in attempting to cross the track of a railroad a few yards in front of a moving car, she tripped and fell, which threw the child under the wheels, and it was injured, and the woman killed. In an action by the child against the railroad company for damages, held, that to a child of tender years no contributory negligence can be imputed, and the negligence of the woman was not contributory negligence of the child, as it had not been committed to her care. (1868, Opinion by Sharswood, J.) North Penn. R. R. Co. v. Mahoney, 57 Pa. St. 187.
      A girl, five years of age, without the consent or knowledge of her parents, accompanied another of eleven on an errand, and as they were returning home, both got on the front platform of a car, while it stopped for passengers, and were allowed to remain and ride there, with the knowledge and consent of the driver; when they approached near home the younger child, in attempting to jump from the car was injured, as some of the evidence tended to show, through the negligence of her companion. Held, that negligence cannot be imputed to one not of sufficient capacity or discretion to understand the danger and guard against it ; and that the negligence of a companion not having charge of such an infant cannot be imputed to it. (1873, Opinion by Williams, J.) Pittsburg, Allegheny, &c. Rw. Co. v. Caldwell, 74 Pa. St. 421.
      A child five years of age. was taken by his grandmotner to a railway station, where she bought a ticket for herself and for the child, and in attempting to cross the railway track with the child, through her negligence they were knocked down by a passing train and the child was injured. Held, that the child was so identified with his grandmother, that, by reason of her negligence, an action in his name could not be maintained against the railway company. (1859.) Waite v. The Forth Eastern Railway Company, 5 Jur. N. S. 936; El., Bl. & El. 719; 28 L. J., Q. B. 258.
      A boy about six or seven years of age attempted to cross a railroad track in front of a moving train. He fell on the track and was killed. Held, that a child is responsible for the exercise of such care and discretion as he shall be found to possess. (1875, Opinion by McAllister, J.) C. & A. R. R. Co. v. Becker, 76 Ill. 25.
      A boy, aged six years, living in a hamlet, accompanying two older boys, went to play on a railroad turn-table and was injured. The turn-table was dangerous through the negligence of the company. Held, that the care and caution required of a child is according to his maturity and capacity, and is determined by the circumstances of each case. The fact that the child was a trespasser does not relieve the company from liability. (1873, Opinion by Hunt, J.) R. R. Co. v. Stout, 17 Wall. 657.
      A boy, about six years of age, and accustomed to play with others on a street, whence opened a private way to a factory, the gate having been left open, went in with other children to play, and was injured by the fall of a platform, which was dangerous by the negligence of the defendant. The court instructed the jury that “ a child cannot be treated as a trespasser or wrong-doer.” Sustained on appeal. (1877. Opinion-by Agnew, Ch. J.) Hydraulic Works Co. v. Orr, 83 Pa. St. 332.
      A boy seven years of age, passing alone along the side-walk of a village street, seized the end of a whip which projected from a sleigh near the side-walk, whereupon a dog, known by his master, who had left him in his sleigh, to be ferocious, sprang upon him, threw him down and bit him. In an action by the boy against the owner of the dog for damages,—Held, that in view of his age and situation, the boy could not reasonably be expected to exercise that degree of care and vigilance which an adult would in the presence of such an animal, and was not guilty of contributory negligence. (1875, Opinion by Cole, J.) Meibus v. Dodge, 38 Wis. 300; S. C., 20 Am. R. 6.
      A girl, seven years of age having been sent by her mother on an errand, in attempting to cross a railroad in front of an approaching train after a whistle had been blown, stumbled upon the track and was run over and killed. Held, that she was not bound to exercise the same degree of caution as an adult. (1873, Opinion by Mullin, P. J.) Costello v. Syracuse, &c. R. R. Co., 65 Barb. 92.
      A boy seven years of age, attempted to run across a horse railroad track in front of the horses of an approaching car, but before he got across, he turned back, and was severely injured by the horses or car. The driver was careless. Held, that the caution required is according to the maturity and capacity of the child, and is to be determined in each case by the circumstances of that case. (1872, Opinion by Hunt, J.) Railroad Co. v. Gladman, 15 Wall. 401.
      A girl seven years and eight months of age, sent by her parents on an errand across a railroad track, being negligent, was injured, but the employees of the railroad were grossly so. Held, that a child is not required to exercise the discretion of a person of mature age, and although it may be negligent, yet if its negligence be slight in comparison with that of the person doing the injury, the child may recover. (1874, Opinion by Craig, J.) Chicago & Alton R. R. Co. v. Murray, 71 Ill, 601.
      A boy nine years of age, on his way to school with two other lads, ran across a railroad track in front of an approaching horse car. His companions crossed safely, and he passed one horse, but was struck by the other and thrown down, and the car passed over him. Held, that he was only to be held to that ordinary or reasonable care and caution, which might reasonably be expected from boys of his own age, under the same circumstances. (1875, Opinion by Allen, J.) Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y. 326.
      A boy nine years of age, who took a seat, in a horse car, but in order to make room for adults, was put out of his seat by the conductor, and the car being crowded, he was pushed by the passengers out on the front platform, and was afterward thrown off by another passenger rushing to get off, and was run over and killed. Held, that a sick or aged person, a delicate woman, a lame man, or a child, is entitled to more attention and care from a railroad company, than one in good health and under no disability. Ordinary capacity, and care, and attention in protecting themselves, is all that the law requires. (1867, Opinion by Hunt, J.) Sheridan Brooklyn City, &c. R. R. Co., 36 N. Y. 39.
      A boy eleven and a half years old was sent by his mother on an errand, and just before he crossed the street where there were two railroad tracks, a freight train approached, and he waited for it to pass, and then crossed the first track, but was struck and killed by an engine coming down the second track, without any signal having been given of its approach. Held, that the young cannot be required to exercise as great foresight and vigilance as those of maturer years, and more care is required towards them, as well as towards the lame, and infirm, than towards others. (1868, Opinion by Hunt, Ch. J.) O’Hara v. Hudson River R. R. Co., 38 N. Y. 445.
      A boy thirteen years of age attempted to get on the front platform of a horse car while in motion, and full .of people, when some one whom he supposed to be the driver ordered him to get on at the rear end. He obeyed and stepped upon the step at the back end, when some one in an authoritative way told him to go to the front end ; in running alongside of the car, which was in motion, he slipped on snow piled up beside the track by the railroad company, and one leg was run over and crushed. Held, that he was not guilty of contributory negligence, as regard should be had to the age and capacity of the person whose conduct is the subject of examination. (1867, Opinion by Mullen, J.) Mowrey v. Central City Railw., 66 Barb. 43; affi’d in effect in 51 N. Y. 666, by the commission of appeals, Johnson, C., holding as above, but the other commissioners not passing upon the subject of contributory negligence of minors, but concurring on the ground that the question of contributory negligence should have been submitted to the jury.
      In an action by an administrator against a railroad company to recover damages for the negligent killing of the intestate, the evidence showed that he was an intelligent lad, thirteen years of age, and lived near the railroad, which he crossed daily in going to and returning from school; that he was conversant with the road and the manner of running the trains; that the tracks crossed the highway nearly at right angles; that upon the day of his death he was last seen going from school at noon, towards the tracks, and about one hundred feet therefrom; that a moment thereafter two trains, going in opposite directions, passed each other at the crossing, and after the passage of the trains he was found dead in the cattle guard, between the tracks; that the engine by which he was struck could have been seen seven hundred and fifty feet distant; that it was a fair day, with but little wind; and that no bell was rung or signal of the approaching train given. Held, that the law discriminates between children and adults, the feeble and the strong, and only requires of each the exercise of that degree of cafe to be reasonably expected in view of his age and condition; but that it could not be said, under the circumstances of this case, the deceased was not capable of appreciating the danger of going upon the railroad track without looking for approaching trains, which, if he had done, would have saved his life, so far as can be seen from the evidence. (1874, Opinion by Andbews, J.) Reynolds v. N. Y. Central & H. R. R. R. Co., 58 N. Y. 248.
      
        Fourteen years, according to Nagle v. Alleghany Valley R. R. Co., 6 Weekly Notes (Penn.), 510, is the limit beyond which the law presumes a minor capable of full care of self.
      A girl, seventeen years of age, on her way to school, had to cross five tracks of a railroad ; after she had crossed three of the tracks an express passenger train came along, and she stopped, and as she did so she looked up and down the track, and saw no engine or car in motion. The view west was unobstructed for about a quarter of a mile. She looked up and down the track but once, and then stood looking along the street she was in and remained standing some ten minutes, waiting for the express train to pass ; and while so waiting, an engine came from the west, at the rate of eight miles per hour, without sounding whistle or bell. Held, that she was not held by law to the exercise of the same degree of care and caution that would be required of an older person, and that the question of contributory negligence was one of fact for the jury. (1874, Opinion by Mullin, P. J.) Haycroft v. Lake Shore & Michigan South. Rw. Co., 2 Hun, 489 ; S. C., 5 Supreme Ct. (T. & C.) 49.
      An infant fell into a water-tank constructed by a city and was drowned. In an action for damages against the city—Held, that it was not sufficient for the city to show that the tank was secure for such persons as ordinarily make use of the streets of a city. City of Chicago v. Mayor, 18 Ill. 349.
      For a discussion of this subject in which the doctrine of Hartfield v. Roper, 21 Wend. 615, is examined and opposed, see 4 American Law Review, 405.
      II. Contributory negligence of parents and other custodians.
      
      A child, aged eighteen months, was on a railroad track and injured by the negligence of the company’s employees;—Held, that the parents could recover, as they were not negligent in the care of their child. (1872, Opinion by Sharswood, J.) P. A. & M. Ry. Co. v. Pearson, 72 Pa. St. 169.
      A child under the age of two years was injured by a passing train. The parents had placed it in competent hands for care, but it had escaped. The railroad employees were negligent, in that they did not use all possible care at the time. Held, that the parents, being unable to care for the child personally, and having placed it in proper hands for that purpose, were not guilty of negligence. That the negligence of the attendant could not be attached to the parents, and the right of the child’s estate to recover thereby defeated. (1875, Opinion by Day, J.) Walters v. C. R. I. & P. R. Co., 41 Iowa, 71.
      A child under two years of age fell on a railroad, and while there, was injured by the negligence of the railroad’s employees. Held, that a child can recover, even if parents are guilty of negligence (which in this case was not so). (1876, Opinion by Moncure, P.) Norfolk & Petersburg R. R. Co. v. Ormsby, 27 Gratt. (Va.) 455.
      A child about two years, of age was in the care of his mother at home, on a cold day. She was engaged in washing, and the child was playing about the room. Having occasion to empty her washtub, she opened the outer door, carried the tub out about ten feet from the door, which she left open, and poured out the water; and while she was doing so the child slipped unobserved out of the door and went upon a railroad track near the house, and was killed by an engine. He had never been known to go out alone upon the railroad track, and in cold weather had never shown any disposition to run out of doors. Held, that the conduct of the mother was not, under the circumstances, negligence as matter of law, but the question of negligence was proper for the jury. (1874, Mem. of opinion by Folger, J.) Prendegast v. N. Y. Central & H. R. R. R. Co., 58 N. Y. 652.
      A child a little over two years of age, allowed to be in the street, ran in the way of a passing car, and was injured by the negligence of the car driver. Held, that if the parents were negligent in permitting the child to be in the street, but the consequences of this negligence could have been avoided by the use of ordinary care and prudence, the inflieter of the injury is liable. (1875, Opinion by Grason, J.) Baltimore, &c. R’y. v. McDonnell, 43 Md. 534.
      A child three years and two months old was sent by his mother, in charge of his sister, nine and a half years old, on an errand to a drug store, which necessitated his crossing a street railroad track; in doing this he fell, was rim over by a car and killed. The driver was not looking, and both the front and rear wheels passed over the child before the car was stopped. Held, that the mother’s sending "the child so attended, was not per se such negligence as to defeat a recovery, but was a question for the jury. (1872, Opinion by Rapallo, J.) Ihl v. Forty-second street, &c. R. R. Co., 45 N. Y. 317.
      A boy three years and eight months old escaped from home with his sister, six years of age, and while in the street they were permitted by a clerk of their father, a young man twenty years of age, to ride with him in a grocer wagon in his usual routine of business. In crossing ahorse railroad track, the boy, who was seated on the end of the seat, was jostled out and fell on the track, and was run over by a car through the negligence of the car driver. Held, that permitting the boy to go on the street accompanied by his little sister only, if negligent, was not a proximate cause of the injury, but was too remote to be regarded, as at the time of the accident the boy was in the care of a person of suitable age, and that it was not negligence, as a matter of law, for him to allow the boy to ride upon the seat, where and as he did; that was a question for the jury. (1874, Mem. of opinion by Grover, J.) Bahrenburgh v. Brooklyn City, &c. R. R. Co., 56 N. Y. 652.
      A child aged three or four years, attended by a brother one or two years older, in crossing a street was injured by a passing street car. Reid, that the negligence of parents does not defeat a child’s right to recover in any case. (1876, Opinion by Brickell, Ch. J.) Gov’m’t St. R. R. v. Hanlon, 58 Ala. 70.
      A child about four and one half years old was permitted by its mother to accompany a brother, about twelve years of age, on an errand. They were permitted to ride on the front platform of a street car, sitting with their feet on the step. The younger one, not being firmly held'by the older brother, jumped or was thrown from the car-while in motion. Reid, that the mother was not negligent in sending the child, thus accompanied, to ride on the car, and also that the older brother was required to exercise only the ordinary discretion of a youth of his age. (1873, Opinion by Cooley, J.) East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503.
      A child, four years and six months of age, living in a quiet neighborhood in the city, where few vehicles passed, was permitted by its mother to play upon her door-steps with other boys, she watching him meanwhile as her work permitted. In a coal yard about a block off was an elevator worked by steam, close to the line of the sidewalk, and during an intermission of work, the sliding door by which it was commonly shut off from the street was left open ; and in the absence of any person to guard it, the child, having left its home unobserved by its mother, approached it, was caught and crushed by the descending car. Reid, that the question of the mother’s negligence should have been submitted to the jury. (1874, Opinion by Reynolds, J.) Mullaney v. Spence, 15 Abb. Pr. N. S. 319.
      A child five years of age was sent on an errand across a railroad track. It played near the track and was injured by a passing car. Reid, that the parents were guilty of contributory negligence, and could not recover for the negligence of those inflicting the injury, but otherwise if the injury had been willful. (1872, Opinion by Downey, J.) Jeffersonville, M. & I. R. R. Co. v. Bowen, 40 Ind. 545.
      A boy nearly six years of age, while playing in a quiet street, where there was scárcely more danger to be apprehended than upon an ordinary country road, was injured by a pile of lumber falling down as he was passing by on the sidewalk. Reid, that his parents’ permitting him to go unattended upon the streets did not constitute negligence per se, but that it was a question for the jury. (1872, Opinion by Grover, J.) Cosgrove v. Ogden, 49 N. Y. 255.
      
        A child about six years of age, deaf and partly dumb, but sprightly and intelligent, was accompanied in the street by an adult attendant, who walked near her; as they came to a street crossing, the street being wholly free from vehicles, the child ran a little in advance of the attendant, and was knocked down and severely injured by a car driven at full speed of the horses, out of a depot, and around a curve of the track into the center of the street. Held, that the question of the negligence of the attendant was for the jury. (1865, Opinion by Davis, J.) Jetter v. N. Y. & Harlem R. R. Co., 2 Abb. Ct. App. Dec. 458.
      A father, having passed through a space of fifteen or twenty inches wide between the rear cars of two freight trains standing on a side track, within five or ten minutes afterward returned in company with his daughter, between eight and nine years of age. As they approached within five or six feet of the opening, in answer to an inquiry from the daughter as to how he got through, the father pointed out the opening, and in his immediate view she attempted to pass through, and was injured by the cars coming together. • Held, that the negligence of the father was imputable to the child, and that she could not recover damages for the injury. (1878, Opinion by Napton, J.) Stillson v. Hannibal, &c. R. R. Co., 7 Cent. L. J. 107.
      A girl twelve years of age in the care of her parents was a passenger on a railroad train. As the train approached the station where she was to alight, the conductor called out the name of the station, and the cars stopped. It was evening and dark, and the girl and her parents arose to leave, but before they got out of the car, the train started and moved slowly by the station, yet although they knew this, they passed out on to the platform of the car, and while the train was still moving, and after it had passed the platform of the station, the girl’s father took her under his arm, stepped from the car, fell, and she was injured. Held, that as she was immediately under her parent’s care and control, his acts and. conduct were hers, and that she was chargeable with contributory negligence. (1874, Opinion by Folger, J.) Morrison v. Erie Rw. Co., 56 N. Y. 802.
      A father took passage with his son, aged about ten years, upon a train .of cars, being assured that the train would stop at a certain station, and when the whistle was sounded for such station, he and his son went out of the car upon the platform, and stepped down on the steps, and being burdened with luggage, stepped off the train before it had stopped, and the son was thrown upon the station platform, and from there fell under the wheels of the cars, where he received such an injury as to cause the loss of both his legs. Held, that the child could not recover, as the negligence of his father was the proximate cause of the injury, by unnecessarily exposing him to danger. (1875, Opinion by Scott, Ch. J.) Ohio & Miss. Ry. Co. v. Strattan, 78 Ill. 88.
      A boy twelve years of age, being unable to find a seat in a railroad car with his mother, by her permission went to the smoking car, and finding a seat there, remained for some time. The train having stopped, he started to return to his mother, and was in the act of going out and down upon the ground in the usual manner, when he was thrown from the platform by the sudden jerking of the car, and injured. Held, that it was not per se negligence on the part of the mother to permit a lad of that age, of ordinary capacity, to go from one car to another under the circumstances, and for the purpose stated. (1871, Opinion by Allen, J.) Downs v. N. Y. Central & H. R. R. R. Co., 47 N. Y. 83.
      III. Contributory negligence of persons aged, disabled, or intoxicated.
      
      A lady, sixty-six years of age, who was lame and obliged to use a cane in walking, was injured by the starting of a horse car, which she was leaving, before she had been allowed sufficient time to alight. Held, that a person who is a cripple, or otherwise feeble or infirm, is entitled to consideration on that account. (1871, Opinion by Monell, J.) Colt v. Sixth Avenue R. R. Co., 33 Super. Court (J. & S.) 189.
      A person partially blind was injured by falling into an excavation in the sidewalk of a city. Held, that the question was properly submitted to the jury whether it was so improper for her to have gone into the street unattended, that it would be sufficient negligence on her part to prevent a recovery for damages. (1868, Opinion by Hunt, Ch. J.) Davenport v. Ruckman, 37 N. Y. 568.
      After a train of cars had come to a full stop, an intoxicated passenger was about to get off, the train was backed by a sudden jerk and with great force, without warning, and he was thrown out and injured. Held, that the intoxication of the passenger did not exonerate the railroad company from liability for the injury, but was proper to be considered by the jury. (1875, Opinion by E. Darwin Smith, J.) Milliman v. New York Central & H. R. R. R. Co., 6 Supreme 
        
        Court (T. & C.) 585 ; Mem. of S. C., 4 Hun, 409 ; affirmed in 66 N. Y. 642.
      An intoxicated man going along a public highway, upon a stormy and somewhat dark evening, fell into a deep railroad cut across the highway, left exposed by the negligence of the railroad company, and was killed. Held, that the mere fact of intoxication will not establish want of ordinary care. (1875, Opinion by Talcott, J.) Ditchett v. Spuyten Duyvil, &c. R. R. Co., 5 Hun, 165 ; reversed on other grounds, 67 N. Y. 425.
      Where an intoxicated person was injured in consequence of defects in a sidewalk and sued the city to recover damages for the injury,— Held, that his putting himself in that condition did not excuse the city’s negligence for having a defective sidewalk, unless his drunkenness contributed to, the injury, and that was a question for the jury. (1875, Opinion by Brady, J.) Healy v. Mayor, &c. of New York, 3 Hun, 708.
      An intoxicated passenger was put off a train at night by the conductor in pursuance of his duty, and next morning was found upon the track fatally injured by having been run over by another train. Held, that as he himself was alone responsible for his intoxication, and the expulsion from the train was not in any way a link in the causes leading to his death, except as it was connected with the intoxication, the company were not liable for wrongfully expelling him from the train. Railw. Co. v. Valleley, 7 Reporter, 406; S. C., 32 Ohio St.
      
      IV. Cases on distinction hetioeen trespassers, licensees, Sc.
      
      The courts of the United States recognize the liability for negligence injuring a trespasser. Some of the decisions in New York courts deny it.
      A boy aged six years, living in a hamlet, accompanying two older boys, went to play on a railroad turn-table and was injured. The turn-table was dangerous through the negligence of the company. Held, that the fact that the child was a trespasser did not relieve the company from liability. (1873, Opinion by Hunt, J.) R. R. Co. v. Stout, 17 Wall. 657.
      A boy about six years of age, and accustomed to play with others on a street, whence opened a private way to a factory, the gates having been left open, went in with other children to play, and was injured by the fall of a platform, which was dangerous by the negligence of the defendant. The court instructed the jury that “ a child cannot be treated as a trespasser or wrong-doer.” This was sustained on appeal. (1877, Opinion by Agnew, C. J.) Hydraulic Works Co. v. Orr, 38 Penn. St. 332.
      In the case of a person who may be deemed to be on the premises by gratuitous license, injury sustained while moving about for mere purposes of curiosity cannot be recovered for, merely on proof of ordinary defects. (1876, Opinion by Devens, J.) Severy v. Nickerson, 120 Mass. 306; S. C., 21 Am. R. 514.
      A man returning home from his work, while walking along a railroad track where the railroad had an exclusive right to the use of its track, was injured. Held, that the railroad company were not bound to look out for those, who without any right intruded upon their tracks. (1874, Opinion by Miller, P. J.) Matze v. N. Y. Central & H. R. R. R. Co., 1 Hun, 417.
      A man was invited by the conductor of a coal train to ride upon the train with a promise to get him employment. There was no passenger car but simply a caboose for carrying train implements and the railroad employes. Through the negligence of the railroad employes the train was run into by another and the man was injured. Held, that he could not recover damages therefor from the railroad company, because the facts did not establish that he was lawfully upon the train. (1874, Opinion by Dwight, C.) Eaton v. Delaware, L. & W. R. R. Co., 57 N. Y. 382.
      A woman wished to cross a railroad track at a public crossing, but was prevented from doing so by a train of cars standing at that point. She then attempted to cross at another place where there was no public crossing, and, in doing so, was struck and injured by a car. Held, that although she was not rightfully on the track, yet, if the injury might have been avoided by the exercise of ordinary care and caution by the railroad company, it was liable for the injury. (1873, Opinion by Wagner, J.) Brown v. Hannibal, &c. R. R. Co., 50 Mo. 461; S. C., 11 Am. R. 420.
      A woman, going to visit her son who lived in a tenement house, fell through a trap-door which had been left open, and was injured. Held., that in the absence of evidence that the trap-door was left open in consequence of negligence on the part of the landlord, he would not be liable. (1873, Opinion by Curtis, J.) Kaiser v. Hirth, 36 Superior Court (J. & S.) 344.
      A child, four years and six months of age, unobserved by its mother, went to a coal yard about a block from its home, and was crushed by an elevator worked by steam, close to the sidewalk and left unguarded. Held, that though the child was technically a trespasser, that would not necessarily preclude the recovery of damages. (1874, Opinion by Reynolds, J.) Mullaney v. Spence, 15 Abb. Pr. N. S. 319.
      A man working upon land near the Erie canal was injured by earth and stone thrown out of the canal by a blast. He had no knowledge or previous notice that the blast was about to be fired. Held, that he was not bound to be on the watch to avoid injury from the blasting. (1874, Opinion by Folger, J.) St. Peter v. Denison, 58 N. Y. 416.
    
   Daly, Ch. J.

The motion for a nonsuit was properly denied. There was sufficient proof of negligence on the part of the defendants’ employees, and the question of co-operative negligence on the- part of the girl was, upon the testimony, a question of fact for the jury. For all that appears in the evidence, the girl may, before she attempted to cross the street, have looked in either direction to see if there were approaching cars; and the approach of the engine was so rapid and at such an unusual rate of speed, according to the testimony of the plaintiff’s witnesses, that it may well be that, notwithstanding the exercise of due care and caution on her part before crossing, the engine came out of the yard so suddenly and at a speed so rapid, that it was impossible for her to avoid the danger. At all events, the testimony does not show such a state of facts as would justify us saying, as a conclusion of law, that there was co-operating negligence on her part. The question, therefore, was one for the jury, and their finding upon it is conclusive.

None of the exceptions to the admission or exclusion of testimony were well taken. The question put to the witness McCormick was not calling for an opinion, but for a fact. It was, in substance, asking him whether he saw the engine sufficiently to see whether the bell was ringing or not. The questions, whether he saw any flagman there when the girl was knocked down, or after she was killed, were proper, for the fact of the presence or absence of the flagman may be shown. Such a question does not come within the ruling of the case of Anderson v. Rome, &c. R. R. Co., 54 N. Y. 334, on which the appellants rely. The questions to the same witness, whether, from a certain position, the interior of the yard can be' seen so as to observe the first northern track, was not calling for an opinion, but for a fact. What was said, in respect to moving the engine four or five inches, to get the body cf the child from under it, amounted to nothing more than the man in charge of the engine saying that he could not move it; which, it appeared from his own testimony afterwards, was owing to the state of nervous excitement he was in, in consequence of the killing of the girl; and the engine was moved by another employee who was upon it, to enable the policeman to get the body out. This testimony could have had no bearing detrimental to the defendants, and constitutes no ground for granting a new trial.

The same witness was asked if he was in a position where, if a bell had been rung, he could have heard it, and he answered that he was. This also was testifying to a fact and not to an opinion. He was sitting in the window of a house at the southeast corner of the Tenth avenue and Thirty-first street with his head out of the window. He saw the train in motion before the girl was killed, and saw it pass the Tenth avenue. He testified that his hearing was good, and a subsequent witness testified that the ringing of a bell of a locomotive could be heard for three or four blocks. It is insisted that it was for the jury and not for the witness to judge whether he could, from the position he occupied, hear the bell. It was for the jury to determine whether the bell was rung or not; but as to the witness’s faculty of hearing, he knew better than the jury could possibly know, how far he could hear the ringing of the bell of a locomotive. He knew that at a certain distance from a locomotive which he saw passing, that he could hear the ringing of its bell, and could swear to that as a fact. It was not testifying that he must have heard it, if it were rung ; but simply as to his ability to hear the ringing of such a bell at a given distance ; which was testimony to go to the jury for whát it was worth. It is often difficult to determine the line of demarcation which separates the expression of an opinion from the statement of a fact, and this, in my judgment, was the statement of a fact.

The witness Kiernan saw the train strike the girl. He was asked if any whistle was blown. This was a proper inquiry (Ernst v. Hudson River R. R. Co., 39 N. Y. 66). His answer was that he could not say whether or not.

As I have before stated, the presence or absence of a flagman at the time of the accident, was a part of the res gestee, as bearing upon the degree of care or caution with which a railroad runs its trains, as was held in McGrath v. New York Central R. R. Co., 63 N. Y. 525, 526, 527, and Beisiegel v. Same, 40 If. Y. 9 ; and if the presence or absence of a flagman may be shown as bearing upon the question of negligence, I see no objection to showing that it had been the habit of the railroad to have a flagman at that place, as tending to show negligence, by the omission to have one on this particular occasion, when the train started (See the remarks of Woodruff, J., in Ernst v. Hudson River R. R. Co., 39 N. Y. 66, 67).

The evidence, however, did not amount to this ; it was that the witness had seen a flagman there, but was not positively sure that he had seen one at that very point. In McGrath v. New York Central R. R. Co., 59 N. Y. 468, the defendant was allowed to show that the railroad had kept a flagman at the crossing, but that he was not there at the time of the accident. The judge, in charging the jury, said that the only pertinence of that evidence was upon the point whether the plaintiff paid that attention he should have paid in approaching the crossing; and the court of appeals held that this was error, as it was admitting the evidence upon the theory that the plaintiff was entitled to construe the absence of the flagman from his customary place as an indication that no train was approaching, and was excused from exercising that degree of vigilance in looking up and down the track to discover what otherwise would be required of him. But when the case came again before the court of appeals, in 63 N. Y. 522, it was distinctly held, that proof of the absence of a flagman might be received as one of the circumstances proper to be proved as bearing upon the question of the defendant’s negligence, and they reversed the judgment because this evidence was excluded. There is an obvious distinction between allowing such evidence to show negligence on the part of the plaintiff, and receiving it only as evidence pertinent to show the absence of co-operative negligence. If the absence of a flagman may be shown as bearing upon the degree of care or caution with which a railroad runs its trains, then, certainly, evidence that it had been the habit of the railroad to have a flagman at the place where the accident occurred, was evidence of the same general character. Such, at least, is my construction of these two decisions in the case cited ; and, as I understand the views of the court upon the second appeal, it is not error to receive evidence that the railroad had been in the habit of having a flagman a.t the spot where the accident happened. Both decisions amount to about this: that whilst it may have been the habit to have a flagman at the crossing, and that may be shown as bearing on the defendant’s negligence, yet the want of one would not excuse a person crossing the road, without looking to see whether a train was approaching.

I fail to see what objection there was to allowing the question as to how many switches there were between Thirtieth and Thirty-first streets, for the jury were entitled to know everything descriptive of the particular locality where the accident happened. Several questions were put by the defendant and excluded ; the object of which, as disclosed in a subsequent offer, and by the questions themselves, was to show that the employee, Baird, who was in charge of the engine, was known to the defendant’s superintendent of machinery, who had reinstated Baird, to be a faithful and competent man to act as fireman on an engine, or mind it in the absence of the engineer, and was faithful in the discharge of his duty. No authority is cited to show that the defendant had a right to give such evidence as this ; and no satisfactory reason was stated upon the argument why it should have been allowed. All that had previously appeared was, that Baird had been suspended, and this superintendent, who was the one who had suspended him, testified that he reinstated him, because he found that he was not to blame in the matter for which he was suspended. The court said that the defendant might give the evidence offered at folio 305, if the object of it was to show that it was impossible to stop the train in time to prevent the accident. But the counsel said that that was not the object in offering it, but as bearing upon the point as to where the train came to a stop ; upon which the court excluded it. As the train passed over the girl, I do not see the materiality of this evidence ; or if the point where the train came to a stop was material, then the objection to the question was, that the conditions assumed in it had not been proved. The defendants, moreover, afterwards gave evidence in accordance with the testimony, to show within what space the train would stop. [Some remarks in reference to certain requests of defendant to charge, are here omitted.]

The third proposition was that the girl, who was a minor, was to be held' to the exercise of the same care and prudence as an adult. The judge charged that the deceased was a bright girl of fourteen, and that the jury were to exact of her the care and judgment which a bright girl of fourteen years of age ought to have exercised under the circumstances of the case ; to which the defendant excepted. He also charged absolutely that she ought to have looked before she went upon the track. I think, as applicable to the facts of this case, that the rule whiph the judge laid down was correct, and that the defendant was not entitled to have the jury instructed that she was to be held to the exercise of the same care and prudence as an adult. I am aware of the decision in the case of Honegsberger v. The Second Avenue R. R., 2 Abb. Dec. Court of Appeals, 378. The reversal in the case was for what was held to be error in my own charge in saying, in respect to co-operating negligence on the part of a minor who was run over in the public thoroughfare by a street car, that a child sui generis is held only to the exercise of the caution and discretion which children of his age are presumed to be capable, and not to the degree of caution, foresight and discretion that would be exacted from an adult.

It would not therefore be becoming in me to express my opinion of the soundness of a decision declaring my own ruling to have been error; but I may with propriety refer to subsequent cases in the court of appeals in which the law is declared to be as I stated it and not as it was expounded in Honegsberger v. The Second Avenue R. R. supra. Thus in O’Mara v. Hudson River R. R. Co., 38 N. Y. 447, where the question was one of contributory negligence, Chief Justice Hunt, in delivering the opinion of the court says: “The old, the lame- and the infirm are entitled to the use of the streets, and more care must be exercised toward them by engineers than toward those who have better powers of motion. The young are entitled to the same rights,- and cannot be required to exercise as great foresight and vigilance as those of maturer years. ” In Mowrey v. Central City R. R., 51 N. Y. 667, Justice Johnson said that the young are entitled to have their condition and ability, mental and physical, considered in diminution of the degree of care exacted of them ; that no greater degree of care was required than the capacity of the person would allow him to exert. In Reynolds v. N. Y. Central, &c. R. R. Co., 58 N. Y. 252, Justice Andrews, in delivering the opinion of the court says, that “ the law discriminates between children and adults, the feeble and the strong, and only requires of each the exercise of that degree of care to be reasonably expected in view of his age and conditionand the same judge in delivering the opinion of the court in McGovern v. N. Y. Central, &c. R. R. Co., 67 N. Y. 421, upon the question of contributory negligence says, that it “is not to be applied inflexibly, and in all cases, without regard to age or other circumstances. The law is not so unreasonable as to expect or require the same maturity of judgment, or the same degree of care or circumspection in a child of tender years as in an adult.” These views are directly opposite to what Judge Hogeboom declared and the court decided to be the law in Honegsberger v. Second Avenue R. R., supra. In delivering the opinion of the court he said that in applying the rule that exacts that degree of care which a person of ordinary prudence would exercise in the situation supposed, the law makes no discrimination on account of age ; that it applies to all persons without exception. The better course, therefore, was the one which the judge, at the trial, adopted; to lay down the rule as stated in the subsequent cases by the judge referred to, and not as the law was expounded in Honegsberger v. Second Avenue R. R.

The sixth and seventh requests were that the defendants were not bound to give any notice of the approach of the engine by the ringing of the bell, or the blowing of a whistle ; in respect to which, it is sufficient to say, upon the authority of the cases cited, that they were. There were other exceptions to the charge, but as they were not argued, and are not referred to in the defendant’s points, I shall assume that they are not relied on.

The judgment should be affirmed.

Van Bbunt and Labbemobe, JJ., concurred.

In Haggerty v. The Brooklyn City and Newtown Railroad Co., decided in the N. Y. Commission of Appeals, September, 1874, which has not been reported,—it was held, 1. That in calling for the opinions of witnesses, the advantage of a hypothetical question including the substance of the whole testimony, should only be sacrificed where circumstancees plainly call for it.

3. That a question which limits the opinion of a witness to information derived from, personal knowledge of the occurrence itself, without any reference to means of knowledge derived from other sources, is objectionable, unless foundation has been laid for it by preliminary questions, tending to show his personal knowledge to be a sufficient qualification.

3. Where an appellant asks to have a judgment reversed on the ground of the exclusion of evidence, and his exception to the rejection of it is a general one, he must show affirmatively that there is no good ground either in matter or form for the action of the judge.

4, That the court may take judicial notice of the fact that in a large city where two city railroad tracks are laid down in a long avenue requiring nearly an hour to traverse it, that the crossings where the cars stop to take on passengers are much frequented even though the street, considered as a whole, may not be.

This case was an appeal by the defendant, from a judgment of the general term of the supreme court of the second department, affirming a judgment for the plaintiff entered on the report of a referee.

The action was brought by James Haggerty, an infant, by his guardian, against the Brooklyn City and -Newtown Bailroad Co., to recover damages for an injury sustained by the plaintiff from a collision with a car under the management of the defendant, by which the foot of the plaintiff was injured.

The issues in the cause were referred to a referee.

At the trial it appeared that the defendant was running cars on two tracks, laid in De Kalb avenue, Brooklyn, which crosses Baymond street.

When the accident occurred (January 30, 1870), there was a car going up the avenue toward the east, and one coming down towards the west. Therp is a steep grade at this point. The plaintiff, a lad about eight years of age, was on the southwest corner of the street and avenue, and waited until the car going up had passed. He then ran quickly across the street in the rear of that car, and close to it, and was knocked down by the horses of' the down car. He was run over by the front wheel of that car, his foot being so much injured as to render amputation necessary. The car was stopped before the hind wheel ran over the plaintiff, the distance between the wheels being about four feet.

The up and down town cars were run in such a manner as to meet at the crossing.

The testimony as to speed of the down car was conflicting, some of the "witnesses testifying that it was going at the rate of a mile in five minutes, and others at the rate of a mile in from eight to ten minutes.

In the course of the trial, the defendants called as a witness Frederick Williams, who was conductor on the up car at the time of the accident, and who witnessed it. After his examination as to the details of the "occurrence, he was asked the following questions : “In your opinion, after having seen this accident, could anything have been done by the conductor of the down car, to prevent the plaintiff being knocked down ?” An objection to this question was sustained under exception.

Frederick 0. Creighton, who was a passenger on the down car, was called as a witness. After giving his version of the facts he was asked : “Havingseen the whole of this occurrence, please state whether, in your opinion, any effort, care, or foresight on the part of the driver could have prevented this accident ?” This question was excluded under exception. Jas. T. Wardrop, another witness, was asked, under like circumstances, as follows : ‘ ‘ Could the driver have prevented the boy from being run over ?” This question was in the same manner excluded.

The referee found that the plaintiff was free from negligence, and that the defendant was negligent in several particulars, and as a conclusion of law, that the plaintiff was entitled to recover $8,000 damages. Some of his findings were objected to, as unsustained by evidence. These are discussed in the opinion.

The judgment entered on the report of the referee having been affirmed at general term, the defendant appeals to this court.

Amasa J. Parker, for appellant.

Nathaniel 0. Moak, for respondent.

Dwight, C. J.—The exceptions to the evidence discussed on the argument are not well taken. The questions in each case called for the opinion of the witness, without laying any foundation for. that opinion. They were excluded by the referee, and a general exception taken. It is said that the questions called for matter of fact, rather than an opinion. To sustain this view, Sloan v. New York Central R. R. Co., 45 N. Y. 125, is cited. In that case, the plaintiff had received serious injury, and a question, was put to her female attendant, how far the plaintiff helped herself, and at what point she required assistance to do what was necessary to be done. This was decided to be a matter of fact. It is, however, a very different question from those put in the present case, where after the facts of the occurrence had been detailed, each witness was asked in substance, whether either the driver or the conductor of the down car could by any effort, care, or foresight, have prevented the plaintiff from being knocked down. No one could answer this question except one acquainted with the business of driving and managing horse cars, and who could take into account the effect of the action of the brake upon a car going at a rapid speed, the kind of brake used, and other circumstances which might be readily suggested (Mott v. Hudson River R. R. Co., 8 Bosw. 345).

Assuming that the question called for an opinion, it is said on the part of the defendant, that as the objection was general, it must be supposed that it was addressed to the nature of the question put, rather than to the competency of the witness to speak, and therefore it must be assumed that the witness was an expert. On this point reference is made to Hoxie v. Allen, 38 N. Y. 175. In that case, the action was brought to recover the value of the plaintiff’s services in procuring the release, at Washington, of a steamship condemned for violation of the revenue laws. One Collins was called as a witness, who testified that he had been at Washington with respect to getting through claims against the government, and that he had had business there with the departments. He was then asked: “From that knowledge, and from the statement of Mr. Hoxie as to his services, what do you think of the value of the services as described?” The question was allowed under exception. Iz was held that this allowance was no ground for reversal, as the objection being general, must be supposed to have been taken to the competency of the evidence, rather than of the witness. The case also decides that the question itself was competent, as that under the ruling was sufficiently objected to.

Following the doctrine of that case, it is to be considered whether the question put in the the case at bar is in its own nature a proper one. It is quite different from that offered in Hoxie v. Allen. In that case, there was in substance the hypothetical question regularly put to experts, since it proceeded on the general experience of Collins, and upon the effect of the other testimony in the cause. The question now to be considered, in the form put to the conductor of the up car, was this:— “ In your opinion, after having seen this accident, could anything have been done by the conductor of the down car to prevent the plaintiff being knocked down ?”

The objection to this question is, that it calls for an opinion, derived not from the testimony in the cause, or even from the general knowledge of the witness, but rather from that derived from the- information gained at the very moment of the occurrence in controversy. If such questions as these are sanctioned, and are addressed to witnesses who are present on Occasions where the facts themselves are contested, the time of the jury will be spent to little advantage in weighing the opinions of witnesses, whose judgment is likely to be biased by their own impressions as to the facts, and with no means supplied to them by the. testimony of other witnesses for correcting their errors. The question was limited to the knowledge derived from the occurrence. He might have known, from other sources, that the brake was out of order, or the driver incompetent, and yet, under the question, have given his opinion solely upon the facts present to his mind at the time of the injury.

In People v. Lake, 12 N. Y. 363, Hand, J., expresses the opinion that a medical man who has had sufficient previous opportunity by his observation to become acquainted with the habits, &c., of a person accused of crime, may give an opinion as to his sanity. This dictum, however, would not embrace such a case as the present, where the opportunities for knowledge called for by the question were slight and insufficient. The advantage of a hypothetical question, including the substance of the whole testimony, is so great, that it should only be sacrificed where cireumstances plainly call for it. (Sills v. Brown, 9 C. & P. 601; 1 Greenleaf on Evidence, § 440; People v. Lake, 12 N. Y. 358; Commonwealth v. Rogers, 7 Metcalf, 505; 1 M. & Rob. 75). There is no solid reason for extending the rules applied in this branch of the law. The testimony of experts, though often necessary, and of high value, requires to be attended with proper safeguards. Only mischief would be produced by permitting their opinions to go to a jury, unless they were formed after competent knowledge, and with all due freedom from circumstances occasioning bias or prejudice (Sanchez v. People, 22 N. Y. 154). In this case, it is said that the rule of evidence as to experts is already sufficiently liberal, in permitting witnesses skilled in the diseases of the mind to give opinions based on an adequate knowledge of the case.

It may be added, that the question was leading, and objectionable for that reason. When an appellant asks to have a judgment reversed on the ground of the exclusion of evidence, and his exception to the rejection of it is a general one, he is bound to show affirmatively, that there is no good ground either in matter or form for the action of the judge (See Van Amringe v. Barnett, 8 Bosw. 357).

The question put to the passenger, Creighton, was still more objectionable. It was in this form : “ Having seen the whole of this occurrence, please state whether, in your opinion, any effort, care or foresight on the part of the driver could have prevented this accident 8” It still more plainly limits the opinion of the witness to the information derived by him from the accident itself, without any reference to means of knowledge derived from other sources. The question put to Wardrop was not so objectionable in form. It does not appear, however, that the attention of the court was called to any distinction between them, and it was clearly leading.

This discussion has proceeded upon the concession that the case at bar is governed by Hoxie v. Allen, supra. It may well be doubted whether the principle in that case is applicable. There was some evidence that Oollins had experience to enable him to testify as an expert., The objection was made in the same form to the testimony of one Briggs, whose capacity to testify as an expert was beyond question. The court on consideration of all the circumstances held that the objection must be regarded as having been made to the character of the question rather than to the competency. Where, as in the present case, there is no evidence that the party has any experience to qualify him to give an opinion, the question becomes objectionable in its own nature, as no foundation of any kind is laid for the introduction of the testimony. It is not that there is an irregularity in form or a vice in substance, but rather that the question cannot be asked of the witness at all, without preliminary questions tending to show his right to speak. The very question that calls for his opinion assumes that his opinion is competent evidence. This cannot be, without some evidence that the question may rightly be put to him. We are asked here to reverse a judgment for an exclusion of evidence, which, if introduced, would have been wholly without value. We do no hardship by refusing to listen to the application, as the defendant could readily have asked the preliminary questions, under a perfectly well settled practice, which, if properly answered, would have justified the witnesses in testifying as experts.

The defendant also objects to some findings of the referee as unsupported by evidence. One finding is, that “Baymond street at the crossing of De Kalb avenue is a frequented and much traveled street.” There is no direct evidence on this point. It may, however, be inferred from the fact that there are two tracks laid along De Kalb avenue. The testimony goes to show that these cars are crowded. The crossings are, of course, likely to be much resorted to by persons about to take the cars, particularly in a large city like Brooklyn. The court may take judicial notice of the fact that in a large city where two city railroad tracks are laid down in a long avenue, requiring at least forty-six minutes to traverse it, that the crossings where the cars stop to take on passengers are much frequented, even though -the street may not be, considered as a whole, since, a considerable portion of the travel of the entire street, as well as a part of that on the avenue, converges at that point. It may be added that the finding in itself appears to be immaterial.

[Some remarks on a conflict of evidence on another point are omitted.]

The judgment should be affirmed.

All the judges concurred.  