
    William H. McFarland, as Sole Administrator, etc., of Wills McFarland, Deceased, Appellant, v. Elmira Water, Light and Railroad Company, Respondent.
    Third Department,
    December 30, 1909.
    Railroad—negligence — death, of child playing in street —erroneous nonsuit.
    Action to recover for the death of a child eight and one-half years old who was struck and killed by a trolley car while playing a game of ‘' tag ” with his companions. It appeared that the motorman was operating the car at an unduly rapid rate of speed, was not attentive to his duty, did not lower the fender designed to he used in emergencies or give the usual signals, and that the hoy, who had • nearly crossed the track/was carried over fifty feet before the car was brought to a standstill.
    
      Held, that a nonsuit was error.
    Sewell and Chester, JJ., dissented, with opinion,
    Appeal by the plaintiff, William H. McFarland, as sole adminis trator, etc., from a judgment of the Supreme Court in favor of the defendant,. entered in the office of the clerk of the county of Chemung on the 2d day of February, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Chemung Trial Term.
    • Knapp & Behring [James 0. Behring of counsel], for the appellant.
    Reynolds, Stanchfi'eld da Collin -[Halsey Sayles of counsel], for the respondent.
   Cochrane, J.:

The plaintiff’s intestate, a boy about eight and a half years of age, was run over and killed by one of the defendant’s trolley cars, and this action is based on the alleged negligence of. the defendant in causing Ms death. The defendant operates a street railroad extending easterly and westerly through West Second street in the city of Elmira. The deceased was attending school in a school building on the northerly side of West Second street and about opposite where the accident occurred. He with a number of other children had just been dismissed from school. There is evidence that as the car approached there were about a dozen boys engaged in what was known as a game of “ tag,” which consisted in running after and trying to catch each other; that some of - the boys had run across from the schoolhouse or northerly side of the street to the southerly side and that the deceased was running after them and endeavoring to overtake them in their game of “tag” as the car approached and struck him. The jury might properly have found that as the motorman of the car approached he saw or should have seen the boys playing on either side of the street and some of them running across the street and that he should have known that engrossed as they were in their sport they might not be alert or sensitive to the danger of the approaching car. The car was equipped with a fender, which, was caused to drop by a pressure of the motorman’s foot in the event of danger or an emergency. That was its purpose. ■ It was the duty of a prudent man as he approached the boys to check the speed of the car so as to have it under control or at least to drop the fender and to give the usual signal.' The evidence tends to show that he took none of those precautions. There is evidence that the car did not stop at the last street crossing before the accident. It had recently snowed and it appears that the body of the boy was pushed along, leaving its mark in the snow for twenty-five or thirty feet behind the car before it stopped. The car was about twenty-five feet long, and when it stopped the body of the boy was under it,-and five or six feet forward from its rear end, so that he must have been pushed or rolled along in the snow thirty or thirty-five feet and the car must have traveled fifty feet or more after striking him. A former motorman on this same line testified that a car such as the one in question going at the rate of fifteen miles an hour could .be stopped in thirty-five feet. It also appears that, the mark in the- snow made by the body. of . the boy was- near' the • southerly ■rail of the track indicating that he had almost made the crossing in front of "the- car and was struck about .-aslie. was. clearing the southerly rail and getting out of danger. Hence, the inference is proper 'either that this motorman at thedime of the accident was operating the car at an unduly rapid rate of speed or that he was not watchful and ■ attentive to his duty, for had he been he would not. have traveled fifty feet after striking the boy. It may, be that the-evidence' in its entirety presents a cáse where conflicting, inferences might be drawn, but on this appeal the plaintiff is entitled to the most favorable inferences and judged from that standpoint it cannot, be said as matter of law-that the. defendant was not -negligent. The inference ■is proper that the motorman should have anticipated that these-boys playing in. the street were in danger and should have, realized that his car was traveling too rapidly in the presence of such danger. The jury might properly have found, negligence on Ink part in operating the car too rapidly and in not giving any signal of its approach having in view the possible danger of the boys getting ■in front of the car engaged as they were in their sport and having their, minds' diverted thereby. Had the speed ' of the car been checked the boy ¡might, have' crossed in safety as lie'almost sue-' ceeded in doing and had the proper signal been given it.might have ■attracted his attention and-prevented him from attempting to cross in front-of the car. •

' On the question of contributory negligence I do not think it can he said as matter of law that a boy eight and one-half years old is. thus guilty under the circumstances here appearing. A"bóy of that age has not the judgment, or mental development which an adult has to make him alert to the danger of. a situation. There is-evidence that, when this boy was engaged in playing Ms mind was very intense and not active respecting: other things. He- may have been so absorbed in his pastime as to make him forgetful or unmindful of danger or he may have thought that, he could cross .in safety the track in front of this, car as he .might have done if the car had not been traveling at an excessive, rate, of speed. These considerations were for the jury. (See Stone v. Dry Dock, etc., R. R. Co., 115 N. Y. 104; Sullivan v. Union R. Co., 81 App. Div. 596 ; affd., 177 N. Y. 525, and Finkelstein v. Brooklyn Heights R. R. Co., 51 App. Div. 287.)

The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Kellogg, J., concurred; Smith, P. J., concurred in result; Sewell, J., wrote for affirmance in an opinion in which Chester, J., concurred.

Sewell, J. (dissenting):

The deceased was a bright, intelligent boy, had attended public school two years ; had had considerable experiences in the city of Elmira and other cities in crossing street railways, and appreciated to some extent the necessity for caution. His father-testified that he had told him repeatedly he should exercise care in being about railroad tracks and that he “ considered him of sufficient age to lock out for himself.”

The accident occurred some distance from the street crossing on the 18th day of February, 1908, between eleven and twelve o’clock in the forenoon. The only witnesses who saw the accident were three of his companions. Two of them testified that the deceased was struck by the fender as he reached the track ; the other one testified that he saw him stumble on the street car track and fall down eight or ten feet from the car. According to all of these witnesses he ran suddenly and directly from the sidewalk to the track, a distance of sixteen and one-tenth feet, and that he did not have sufficient time to cross the track when he attempted to do so. One of the witnesses testified: “ I noticed which way he was looking when he ran. When he ran in front of the car he was looking towards that way. * * * That was towards the car. * * * Q. And when he ran didn’t he look right straight ahead ? A. Yes sir, right towards the big brick building; he didn’t stop to look to see if any cars were coming * * * or not. * . * * He had a stocking cap pulled down over his ears. * * * He did not stop to look, towards the car * * * or any other way, * * * but started and ran right across.” ■

Ho testimony was given tending to show that the boy looked to the right or the left before attempting to cross, or that he exercised the slightest care to ascertain whether it was safe to make the attempt. It appeared that there was nothing between the curb and track, a distance of twelve and five-tenths feet, to interfere with his seeing the. approaching car; that it was in plain sight of the deceased and moving slowly. There was no evidence as to how fast the boy was going, but it would be entirely consistent with human experience to assume that he traveled at the rate of four miles an hour. ( White v. Albany Railway, 35 App. Div. 26.) At that rate he reached the track, along which the car was coming, in less than three seconds.

There was no proof that the mótorman saw the boy as he .approached the track, but if we assume that he did, the testimony as to the close proximity of the car, and that it “ would not take over ten or fifteen seconds” to drop the fender if “ everything was in. good working condition,” forbids the conclusion that the motorman could by the exercise of care have stopped the car or dropped the fender in time to prevent the accident.

I think that the plaintiff failed to show, either by direct proof or from the circumstances, that the accident was caused solely by the negligence of the defendant, but apart from that question there was not enough to go to the jury upon the question of negligence of the plaintiff’s intestate, in that it clearly appeared that' his failure to observe the slightest care or precaution contributed to the accident, if it was not the proximate cause.

It is true that a child of tender years is not required to exercise the same degree of .prudence in the. presence of danger which is expected of an adult under like circumstances, but it seems to be well settled that he is not in law excluded from exercising some care in approaching and passing known places of danger. (Sobol v. Union Railway Co., 122 App. Div. 817; Weiss v. Met. Street R. Co., 33 id. 221; affd., 165 N. Y. 665; Fenton v. Second Ave. R. R. Co., 126 id. 625.)

I am of opinion, therefore, that the complaint was properly dismissed and that the judgment should be affirmed, with costs.

Chester, J., concurred.

Judgment reversed and new trial granted, with costs to- appellant to abide event.  