
    Carlo Scotti et al., as Administrators, etc., App’lts, v. George Behsmann et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 16, 1894.)
    
    NegliGence—Contributory.
    Where a person has been placed, without any fault or negligence on his. own part, in a situation of peril, it does not make him guilty of contributory negligence if he does not do exactly the right thing in order to avoid, the danger.
    Appeal from a judgment dismissing the complaint.
    
      W. K. Hall, for app’lts; J. A. Hodge, Jr., for resp’ts.
   Van Brunt, P. J.

This action was brought to recover damages for the killing of the deceased by a vehicle belonging to the-defendants. The deceased was a boy nine years old. He was-proceeding, with others, up First avenue, in the neighborhood of One Hundred and Third or One Hundred and Fourth street, and,, the party desiring to cross the street in their progress along the-avenue, the boy went ahead of the rest, and was upon the crosswalk, crossing the street, when some of the others saw a cart coming through the avenue, which, without giving any warning, suddenly turned around the corner of One Hundred and Fourth street, going on a little trot, the boy being about two or three feet away from the cart. He was called to, and started ahead in front of the horses, and! was struck and killed. Upon this state of the evidence, the court dismissed the complaint. This, we think, was-error. The deceased was going along the avenue, and crossing at the crosswalk. He had no reason to anticipate that any vehicle-upon the avenue would turn suddenly across the walk without, giving any warning. It is claimed, however, that the evidence-shows that when the deceased was called to he ran in front of the-horses, and it was because of this the accident happened. But it is apparent that the vehicle was right upon him when his attention was called to it, and that this was a spasmodic effort to preserve himself from a situation of danger, in which he had been-placed without any fault or negligence upon his own part; and, if he did not do exactly the right thing in order to avoid the danger, that does not make him guilty of contributory negligence. It-was the duty of the driver of this vehicle, when turning around this corner, to have given those people who were crossing the street some opportunity of escape from a vehicle which they had no reason to suppose was going to interfere with them. It was the duty of the driver, under these circumstances, to see that the crosswalks were clear before he turned into the street, and not to ruthlessly ride down any pedestrian who might be happening to be pursuing his course along the avenue at the intersection of the street.

The judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.  