
    Kate Healey, an Infant, by Martin Healey, her Guardian ad Litem, Appellant, v. George Ehret, Respondent.
    
      Negligence—a, child three and a half years of age, crossing a street two feet in front of her aunt, run down by a wagon—the questions of negligence and, contributory negligence are for the jury.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, if appeared that the plaintiff’s aunt, who had her sixteen months’ old child in her arms, and was accompanied by another of her children and by the plaintiff, each of whom - was about three and onefialf years of age, before attempting to cross on a crosswalk from the east to the west side of an avenue in the city of New York at a point where it was intersected by a street, observed that the only vehicle on the avenue was a wagon belonging to the defendant which was proceeding from a point on the west side of the avenue on the block south of her, diagonally north, toward the easterly side of the avenue; that she permitted the two older children to start ahead of her, she keeping about two feet behind them,-and that while thus proceeding the wagon, the horses attached to which were trotting, suddenly and without warning changed its direction when át a distance of ten or fifteen feet from the plaintiff and ran her down. There was evidence tending to show that the driver of the wagon was in a dazed, sleepy or drunken condition, and that, although he was warned of the danger when ten feet away from the children, he did not heed the warning, and made no effort to slacken the speed of the horses.
    
      Meld, that the question of the driver’s negligence was for the jury;
    That the plaintiff being non stii juris the negligence of her custodian, if proven, was attributable to her;
    That it could not, however, be said, as matter of law, that the plaintiff’s aunt was guilty of contributory negligence in attempting to cross the avenue under the existing conditions, or in failing to; anticipate the change of direction of the wagon, or in not having the children by the hand.
    Appeal by the plaintiff, Kate Healey, an infant, by Martin Healey, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, éntered in the office of the clerk of the county of Hew York on the 5th day of June, 1896,.upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.
    
      Frnest M. Weleh, for the appellant.
    
      Grcmt O. Fox, for the respondent.
   McLaughlin, J. :

The plaintiff seeks in this action to recover damages for personal injuries sustained on December 19, 1895, through the alleged negligence of the defendant. The questions presented, on this appeal are : Was the defendant guilty of negligence, and was the ruling made at the close of the plaintiff’s case, dismissing the complaint on the ground of contributory negligence on the part of the plaintiff’s custodian, right? In determining these questions, the plaintiff is entitled to the most favorable inferences to be drawn from the testi.mony which tends to support her cause of action. Even though the testimony were susceptible of different inferences these would be-for the jury, and not for the court. :

The testimony shows that at the' time of the accident the infant plaintiff was about three and a half years old, and was in charge of her aunt, Mrs. Mell'arky, to whose care she had been intrusted by her mother. Mrs. Mellarky also had with her at the time two of her own. children, one sixteen months old, whom she carried in her arms, and the other a child of the plaintiff’s age. Mrs. Mellarky, having these three children, and being on the southeast corner of One Hundred and Eighth street and Second avenue, desired to cross the street from that point to the west side of the avenue on the southerly crosswalk. Before leaving the sidewalk, Mrs. Mellarky observed a brewery wagon belonging to the defendant, which was the only vehicle in sight on the avenue at that time, proceeding from a point on the west side of Second avenue between One Hundred and Seventh and One Hundred and Eighth streets, diagonally towards the east side of the avenue. Apprehending no danger from the wagon, she permitted the plaintiff and her own child to start ahead of her, she keeping about two feet behind them ; and while thus proceeding, and when the children had reached the car •track, the wagon — at that time being some ten or fifteen feet away, the horses proceeding at a trot — changed its direction, and instead of continuing, as it might have done and as Mrs. Mellarky supposed it would, across to the east side of the avenue, it turned on the uptown railroad track going north and reached the place where the children were, and the horse on the left or west side of the wagon struck the plaintiff and threw her down, and the brewery wagon passed over her, the wheels crushing and fracturing her right arm and inflicting other injuries. It was further shown that the change in the direction of the horses and wagon was sudden, and without warning, the horses swinging in on the track and proceeding at a trot in approaching- the crosswalk, the driver having permitted the reins to rest on the horses’ backs. One of the onlookers, seeing the danger, called out to the driver when he was at least ten feet away from the children on the crosswalk; but if the testimony is to be credited, the driver either did not hear, or did not care if he did hear, because no effort was made to slacken the speed of the horses or to check them with the reins, and they got some distance beyond where the child was run over before they were- stopped by strangers who ran after the wagon and took the horses by the head. Whether the driver was conscious of what had been done, does not clearly appear, the inference from the testimony of one at least of the witnesses being that he was in a dazed, sleepy or drunken condition.

It is evident from this showing of the plaintiff’s that there wasufficient to go to the jury upon the question of the driver’s negligence ; and that view was apparently shared by the learned trial judge, his ruling being based upon the ground of the contributory negligence on the part of Mrs. Mellarky, which was imputable to the infant plaintiff. Considering the tender age of the child, the' court was right in holding that she was non sui juris, and though not, therefore, capable of being guilty of negligence herself, her custodian’s negligence, if proven, was imputable to her. It, therefore, remains to determine whether the course pursued by Mrs. Mellarky in attempting to cross the street under the existing conditions can be held, as matter of law to have been negligent. She saw the wagon while it was proceeding from the' West side diagonally across towards the southeast corner of the avenue; and from- the posi-: tion which she and the children reached near the track in the middle of the avenue, it is evident, that had the wagon gone in the di-rec-. tion in which it was headed, to the east side of the avenue and northerly, she'and the children Would have passed in safety. -She was not guilty of negligence as matter of law in failing to anticipate the change of direction of the horses and wagon. There was not even a lack of judgment on her part. The accident was due to the sudden change in the direction taken by the horses attached to the wagon and the speed with whiph they approached the crossing.. They were not under the driver’is control when they reached the place where the children were.' It is true that Mrs. Mellarky- had not the children, as she could not very well have had them, both by the hand, because she had one child in her arms. She testifies that they were not more than two feet in front of her; she is supported in this by her further statement that she was close enough to them to be able to seize her own child and draw it back to a place of safety, but that the time was not sufficient to permit her also to reach her niece who was injured. ;

Upon' the defendant's view of the law applicable to pedestrians and vehicles, a wagon would be entitled.to the unrestricted use of the entire roadway, and a person in Mrs.. Mellarky’s position would, have to wait until every vehicle using the street had passed up. or down before she might, without negligence, venture to cross. It has frequently been held that, as between pedestrians- and vehicles, the former has not priority in the use of the streets, but each, in using them, has equal or reciprocal rights and duties. Having observed the brewery wagon and the direction in which it was headed, Mrs. Mellarky was not guilty of negligence, as a matter of law, in concluding that the driver would not, without any regard to her presence on the crosswalk with the two children, permit the horses suddenly and without warning to change their direction and approach the crosswalk at a pace so rapid that it was impossible for her to remove the children or reach with them a place of safety.

The contention that she was guilty of negligence in not having the children by the hand in crossing is disposed of by what was said by Van Brunt, P, J., in Coghlan v. Third Ave. R. Co. (39 N. Y. Supp. 1098): “ It cannot be held, as matter of law, that a person who is in the street with a child of immature years is bound* every instant of the time, to have his hands actually upon the child, restraining its movements.” Hor do we think the case upon which so much reliance is placed by the respondent (Barker v. Savage, 45 N. Y. 191) is in point or controlling. That case, upon its facts, is clearly distinguishable from the one at bar, as shown by the language of the opinion: “ There was no evidence that the plaintiff looked at all in either direction for approaching vehicles, and the evidence tends to show that she entered upon the crossing and walked along upon it without taking any precaution for this, purpose. That had she looked she could have seen the horse and cart in time to have avoided the danger. That for some unexplained reason she failed to hear the cry of the driver, made for the purpose of notifying her of her danger, although such cry was heard by persons at much greater distance than the plaintiff, and which would have been heard by her in time to have avoided the danger if reasonably attentive to the danger of her situation. We have already seen that it was her duty to look along the street to see if it was safe to proceed. This she could have done without stopping. Turning the eyes alopg the street required no special effort, and, if her failure to do this contributed to the injury she had no right of recovery.” Here, the person in whose care the child was stopped at the corner before proceeding on the crosswalk, and saw the position and direction of the brewery wagon; and not only was she not warned, but the evidence is that the driver was the one that was warned, and that, heedless of such warning, he continued on his course.

We think that the disposition made below was wrong; that upon the facts appearing on the plaintiff!? evidence the question of contributory negligence was one of fact for the jury, and that, therefore, the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, J J., concurred .

Judgment reversed, new trial ordered, costs to appellant to abide event.  