
    Philomena Giraldo, an Infant, Resp’t, v. The Coney Island & Brooklyn Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Negligence—Railroad.
    Plaintiff, an infant three years old, was injured by being run over by one of defendant’s cars. The car was being drawn up a steep grade by three horses. Plaintiff’s witnesses testified that they saw the leading horse strike her and the car run over her. The driver testified that he did not see her until after the accident, and one of defendant’s witnesses testified that she came to the side of the car and put her hand on the step. Held, that a verdict for plaintiff was not so unsupported by evidence as to warrant setting it aside on that ground.
    2. Same—Charse.
    A charge that the highest degree of care is required of a driver who-sees a person lying helpless on the track in front of the vehicle is not reversible error where it does not appear that the driver saw the plaintiff at’ all until after the accident.
    Appeal from judgment in favor of plaintiff entered on verdict
    This action was brought to recover damages for an injury to-the person. The plaintiff is an infant, who, at the time of suffering the injuries complained of, was in her third year.
    The evidence on the part of the plaintiff shows, that while-the plaintiff was upon the roadbed of defendant’s track on Main street, in the city of Brooklyn, on the 27th day of August, 1890, at 2.30 o’clock in the afternoon, she was run into and struck by a team of horses and run over by a car, then being drawn by the-said team of horses, both of which horses and car are admitted by the answer to be defendant’s property, and at the time under the control of defendant’s servants.
    At the time and place of the injury to plaintiff defendant’s car was then being drawn up grade, so much so that instead of the usual two horses, a third horse had been attached at the foot of the hill to assist it over the steep grade. „
    _ While the horses were from forty to fifty feet away from plaintiff some persons called out to the driver to stop, but the car was not stopped until the full length, both horses and car, had passed, the spot where the child was knocked down.
    
      Neither the driver, boy who was driving the third horse, nor the conductor saw the plaintiff until after she was struck.
    Another and the remaining witness on behalf of defendant present at the scene of the injury, gave a different version of the •accident, in flat contradiction to plaintiff’s witnesses.
    This witness testified that he was sitting with his back to the horses, on the last seat from the horses. The car was an open ■one, with seats extending across its width, parallel to the platforms.
    This witness does not claim to have seen the injury, but states that he saw a little girl come from the sidewalk, and go in the ;same direction then being followed by the car, and take hold of the platform or step on a spot nearer the horses than he was sitting, and to which he had his back turned.
    This action was tried before a judge and a jury, and a verdict rendered in favor of plaintiff.
    
      Wm. Y Dykman, for app’lt; L. J. Morrison and John G. Kennedy, for resp’t.
   Pratt, J.

The jury believed the accident to have been caused in the manner testified to by the plaintiff’s witness.

We cannot say the verdict is so unsupported by the evidence as to warrant us in disturbing it.

The exception chiefly relied upon is one made to the ruling of the court as to the degree of care required of a driver who sees a person lying helpless upon the track in front of the vehicle.

The jury were told that in such case the highest degree would be required of the driver.

That was error, but it cannot have injured defendant, as in this case the driver did not see the plaintiff, either helpless or ■otherwise, until after the accident.

As the situation supposed did not appear in this case, we must assume that the misdirection caused no injury.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  