
    Francis J. McCann, an Infant, etc., App’lt, v. The Sixth Avenue Railroad Co., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed January 7, 1889.)
    
    1. Negligence—Stbeet bail-ways.
    Negligence cannot be predicated upon speed alone.
    2. Same.
    If the danger arise from the sudden and unexpected and not to be-anticipated presence of a person before the horses of a street railroad cart it seems that any rate of speed will not be held negligent.
    Appeal from a judgment entered in favor of the defendant upon a verdict directed by the court.
    
      J. U. Foley, for app’lt; D. M. Porter, for resp’t.
   Sedgwick, Ch. J.

The facts of the case were that while one car of the defendants was at stand its conductor kicked at the plaintiff, who was upon its platform. To prevent the kick reaching his body, the boy, by one jump, jumped into the middle of the uptown tracks. As he touched the ground he was knocked down by the horses of a car going uptown. The jury might have found that these horses were going at a great and unusual speed.

The complaint did not charge negligence in general or speciñcially in respect of the kick and its effects. It confined the negligence charged to the following matter: “ that while the plaintiff herein, in a careful and orderly manner and with full and lawful right was passing along a public highway, etc., to wit, etc., he was struck and knocked down by the horses attached to one of the cars belonging to the defendants.”

I am of opinion, that while negligence may be predicated of a dangerous rate of travel, ordinary caution and care called for the regulation of the speed and the control of the horses in reference to persons that ordinary provision may or should anticipate may be endangered. If the danger arise from the sudden and unexpected and not to be anticipated presence of a person before the horses, I do not think that any rate of speed is negligence.

In this case, the proof was that the plaintiff by his bound came to the ground, at once in the middle of the uptown track, where ordinary prudence and calculation on the part of the driver of the horses that did the damage could not suggest that the plaintiff would be.

It is only a matter of conjecture as to what would have happened if the boy had stepped from the platform of the car, and, before he went upon the uptown track, first went to the space by the side of that track, where he could have been seen by the driver of the horses that knocked the plaintiff down.

I am of opinion that the driver, in regulating the speed, was not called upon to suppose the occurrence of the unusual—and, with particulars, exceptional—facts that preceded the plaintiff’s jumping before the horses.

I am of opinion that the judgment and order appealed from should be affirmed, with costs.  