
    Harriett Nugent, an Infant, by Harriett Nugent, her Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—failure, of the driver of a horse coir to look in the direction in which he is driving. . . -
    Evidence :that a child three years and eight months old walked- from the curb of a sidewalk seven feet six inches to the first rail .of a street railroad, reaching the rail when the head of a horse drawing .an approaching car at the rate of about five miles an hour was still ten feet away from her, and that,- although, there was nothing lo'obstruct the' driver’s view, and the car -might have been stopped within a distance of twelve feet, the child was knocked down and one of her legs was cut off hy the front wheel of the car, is sufficient to support the finding of a jury- that the negligence of the driver in not looking in the direction in which he was driving was the cause of the injury.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of January, 1897, upon the verdict of a jury* and also from an order entered in said clerk’s office on the 6th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      John T. little, Jr. and Theodore IT Lord, for the appellant.
    
      Arthur 0. Palmer, for the respondent.
   Parker, J.:

The plaintiff, when three years and eight months old, and on the 5th day of May, 1896, while crossing Madison street, at or near James street, in the city of New York, was knocked down by a horse drawing one of the defendant’s cars and run over by one of the forward wheels of the car, sustaining serious injuries, among them the loss of a leg at the knee.

The result of the trial was a judgment in favor of the plaintiff, and the only question requiring consideration on this appeal is, whether the evidence will support the finding of the jury, that the defendant was guilty of negligence. The plaintiff sought to show that the driver, instead of looking in the direction in which his horse was going, fixed his attention on some object on the other side of the street, and thus his horse was permitted to go on unchecked until it struck the child with one of its fore feet knocking it down, one of the wheels of the car passing over the child before the car was stopped; whereas the car could have been stopped in time to^ have saved the child from harm, had the driver been attending to his duty and made such an effort in that direction as he ought to have made.

The defendant’s view of the character and force of the evidence introduced in its behalf is suggested by a request to charge made by the defendant’s counsel.after the court had instructed the jury: “I ask your honor to charge the jury, if the jury believe that .the car driver, was standing on. the front platform with his hand on the brake and looking ahead,, and that the child ran suddenly across the street either from the north sidewalk or from the south sidewalk and struck against the horse or against the side of the defendant’s. car,, or ran two or three feet-in front..of the horse of the defendant’s car, and that the ear driver immediately applied the .brake and stopped the car so .quickly that only the front' wheel of the car reached the child, then the plaintiff cannot ■ recover and the verdict must beF for the defendant.”

The court charged as requested. It must now be assumed that the evidence. most favorable to the plaintiff’s contention has been ■ found by the jury-to.'be .true. The inquiry then is whether such evidence charges the defendant with negligence. • The plaintiff, with a little .broom in her hand,' started to cross Madison street. From the curb on .the north side of the street to the first rail of defendant’s railroad was a distance of. seven feet six-inches; between such rail and the south rail the distance was four feet two inches. . It was betweén these two ■ rails that the plaintiff was' struck by the horse drawing the car. Ellen O’Reilly testified that she lived near. the. place of the accident, and at the time of its happening stood in the doorway of her husband’s store. I was. watching the child coming .acrossI saw the car coming, and the driver’s face was not turned towards, the horse; he was .looking at something that was on, the same side of the street;. it was a. laundry that was there, and there was some attraction there. * * * From the point that I stood I could - see where the driver was directing his glances. He was looking towards-the laundry. - Q. When the little girl reached the first track you say the horse was close to her? A. Quite close to her. Q. Now, at that time, where was the driver facing? ' A. He. was'turned towards, the laundry.” '■

Sadie McDonald testified that on the fifth day of May she resided near the place of the accident, and saw the accident from her window on the second floor of.-No. 39. Madison street. “I saw what - occurred when the child reached the track. The front left leg of the horse struck the' child! I observed the driver at that- -time. He -was looking direct towards the laundry, on the down side of the street. * * * At the time the little girl went down the driver was still looking at the laundry.”

Margaret Fraser testified that she lived at 43 Madison street and saw the accident. She saw the little girl on the sidewalk sweeping with a little broom,.and then she saw her go from the sidewalk to the street as if she would cross it, but when she reached the northernmost rail of the car track defendant’s'car was about ten feet from her. “ The horse was going as rapidly at the time the little girl reached the rail as it was at the time I first observed the horse. I did not see what the driver of that car was looking at. I know he was looking toward the uptown side ;■ looking down west instead of looking east. This car was proceeding west. He was looking, his face towards the east instead of the west; he was turned around; he was looking around.”

Margaret Splain, a witness for the plaintiff, said that she Was riding in the car when the child was hurt, and that the car was going rapidly. At the time, or just preceding the time, when I felt the jar, I observed that the driver of the car was looking to the opposite side from where the child was hurt; from the side she was hurt. I was sitting on the side of the car that went over the child. * * * He was looking the opposite side from. which the child was run over. The driver had been looking in that direction before I felt the jar, about three or four seconds.”

The extracts which wre have taken from the testimony of four of the witnesses authorize a finding which, on this review, we must assume was made by the jury, that the driver of defendant’s car was not, at the moment of .the accident, nor for a few seconds preceding it, attending to his duty. While a street railway has the right of way upon the highway, still it is bound to make an effort to so operate its cars as to save others from . injury. Men, women and children on foot,, or in conveyances, have the right to and do use the streets, and a car driver must be alert and watchful to avoid injury to those who, "because of tender years, advanced age, enfeebled physical condition or accident, do not get off the track at the near approach of a car.

The negligent act complained of being established, the further question is, whether the accident happened by reason of such neglect; for, if the accident must have occurred,-had the ■ driver performed liis full duty, the recovery cannot he^ sustained. It is urged that when the child left the sidewalk to cross the track, the car was so near to the point of crossing that it was not possible for the driver to stop the ear in time to' avoid the accident.. If the driver’s testimony could be treated as accurately describing what took place, there could be no doubt of the soundness of the appellant’s .contention, for he testified that when lie first saw the plaintiff she started to run. from the gutter towards the middle of the. street. She. ran toward the way I was going; run straight into my horse. The little child was going .as fast as she could run.”' But again vre are required to assume that the -testimony of the plaintiff’s witnesses has been accepted by the jury; and, before referring to it, it may as well be said that, after i careful consideration of all the evidence bearing upon the subject, we do riot feel warranted, in holding that the ju-ry were hot authorized to find the fact to be as testified to by them. - Sadie' McDonald testified that when the child reached the first rail of-the track,, the front portion of the .horse was about five, feet from her. .Margaret Fraser testified • that ..when the plaintiff reached the rail of the track the horse’s head, was about ten feet away from her. - Mary Langstaff also testified'that when the child reached the rail she-was about ten feet from the horse,, and was walking. There was no obstruction. to prevent the driver from seeing the child. . Had lie been looking in her direction, lie could have seen her leave the sidewalk and- pass .over the seven feet six inches between the curb and the first rail of defendant’s road. As it .appears that, when she reached the rail the horse was , still about tqn .feet away from -her, it necessarily follows that' the horse was some further distánce away when the plaintiff left the sidewalk to cross the street. By the driver’s, testimony- we are informed that the car was running time gait, or-about five miles an hour, and that upon that grade .it could Have been stopped in about twelve feet. It follows that' had the. driver attempted to stop the car at. the instant the child reached the first .rail, the wheel would .'not have passed over her. .The horse’s, head, was then'ten feet from her, and from the horse’s head back to the wheel was at -least ten feet more. -So, if the car had been stopped within the next twelve feet, the wheel would have lacked several feet of reaching the plaintiff.

The jury were, therefore, at liberty to find that, had it not been for the driver’s carelessness, the plaintiff’s leg would, not havé been cut off by the wheel. There was also opportunity to find that, had the driver been looking in the direction pointed out by duty, he-would have had even more than twenty feet within which to stop the car —■ as many more than twenty feet as his horse traveled, going at the rate of five miles an hour, while the plaintiff was walking about seven feet six inches.

•Enough has been said to make it appear that the finding of negligence by the jury has sufficient support in the evidence, and more, need not be said.

The judgment should be affirmed, with costs.

Rumsey, Williams and Patterson, JJ., concurred; Van Brunt, P. J., dissented.

Judgment affirmed, with costs.  