
    Baker v. Eighth-Ave. R. Co.
    
      (Supreme Court, General Term, First Department.
    
    November 13, 1891.)
    Horse and Street Railways—Injuries to Person Crossing Street.
    In an action against a street-railway company for personal injuries, it was shown that plaintiff, a child eight years old, started across the street immediately behind an up-town car, near the middle of a block where there was no crossing; that the horses of a down-town car came immediately in front of her as she got between the tracks, and that the driver, on seeing her, pulled his horses away from her, so that she was struck and knocked down by the flank of one of them, and injured by the car-wheel passing over her foot. One witness testified that the driver had his face turned away from the child, and that his attention was first attracted to her by the horse’s collar striking her. Held that, as the child’s crossing immediately behind the up-town car was not to be anticipated, the action of the driver was, at . the worst, an error of judgment, and the evidence will not sustain a finding of negligence.
    Appeal from trial term, city and county of New York.
    Action by Emmeline G. Baker, by William H. Baker, her guardian ad litem, against the Eighth-Avenue Railroad Company, for personal injuries. There was judgment for plaintiff on a verdict by the jury, from which defendant appeals.
    Judgment reversed.
    Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
    
      John M. Scribner, for appellant. Jacob Fromme, for respondent.
   Ingraham, J.

A review of the evidence in this case has satisfied us that the finding of the jury that the injury was caused by defendant’s negligence cannot be sustained. There were three witnesses called on behalf of plaintiff as to the occurrence that resulted in the injury. The plaintiff herself, a child eight years of age at the time of the accident, testified that she passed behind a car going up town, and as she did so a car came down town, the horses, as she stood between the tracks, being directly in front of her; that she stood between the up-town track and the down track; that she saw the driver pull the horses away from her; as he did so, she was struck by the hip of the horse nearest to her, and was thrown under the car. The place at which the plaintiff crossed was about midway between two cross-streets; there was no cross, sidewalk in that vicinity. Haley, a witness called for the plaintiff, testified that he noticed the child pass behind the up-town car; that he saw her struck by the collar of the horse attached to the down-town car; that at that moment the driver pulled the horses around to the west; away from the child, and the child was then struck by the hip of the horse, and was thrown under the car. He also testified that shortly before the accident he saw the face of the driver turned towards the west. Einnelly, a policeman, was the third witness called for plaintiff. He testified that he was on the back platform of the up-town car. Saw the child pass behind the car, and stand between the tracks, and that he noticed that one of the horses was outside of the rail between the two tracks, and that the plaintiff was knocked down by the flank of the horse, and her leg got under the car. There was no reason for the driver to expect that a person would attempt to cross right behind the up-town' car. There was no cross-walk at which persons were in the habit of Crossing, and the mere fact that he at that moment turned his head away from the horses or the front of the car would not of itself justify a finding of negligence. Haley says that the collar of the horse striking the child was what attracted the attention of the driver. The plaintiff herself says that she was struck by the back of the horse, and Einnelly, the policeman, says that the first thing he saw was plaintiff knocked down by the flank of the horse. It is not material which of these versions is accepted. It is apparent that the appearance of the child so near the track, and in a place of possible danger, justified the driver in taking means to avoid an accident. He had to act rapidly, with little time for reflection, and it cannot be said that because it now appears probable that, had he allowed his horses to go straight on, the child would have escaped, it justifies a finding that he was negligent. At most, it was an error of judgment as to what, under the circumstances, would most likely prevent, an accident; and there is no question but what he acted in good faith, and did what he supposed, under the circumstances, was the best thing to do. As was said in the ease of Fenton v. Railroad Co., 126 N. Y. 627, 26 N. E. Rep. 967: “Street railway cars have a preference in the streets, and while they must be managed with care, so as not to carelessly injure persons in the-street, pedestrians must, nevertheless, use reasonable care to keep out of their way.” There was no reason why this child should have passed behind the car, and stood so near the track of the down-town car that the horse could hit her; and the driver had no reason to expect that any person would act as the plaintiff testifies that she did; and his efforts, made in good faith, and in the exercise of his best judgment at the time, to avoid injury, will not justify a finding that he was negligent. The testimony of the defendant gives a slightly different aspect to the case, but makes it only more clear that the action of the driver was, under the circumstances, judicious and proper. We think, therefore, that the court should have directed a verdict for the defendant; and it follows that the judgment be reversed, andanew trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J. I concur in result.

Daniels, J., (concurring.) I think the case was not for the jury, but for a dismissal of the complaint, and therefore agree to a reversal and new trial.  