
    (70 App. Div. 606.)
    CSATLOS v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Division, First Department.
    April 11, 1902.)
    .Street Railways—Personal Injuries—Contributory Negliqence.
    Where, in an action against a street railway tor injuries received while attempting to cross the track, it appeared that plaintiff stepped on the track when the car was but a short distance from him, and that the driver shouted, and attempted to stop the car, and the negligence was principally predicated on the failure to equip the car with a suitable brake, it was error to instruct that notwithstanding negligence on plaintiff’s part he could recover if the company, by exercising care, could have avoided the accident.
    Appeal from supreme court, New York county.
    Action by William Csatlos against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying new trial, plaintiff appeals. Reversed. Prior reports: 71 N. Y. S. 254, 72 N. Y. S. 1098, 74 N. Y. S. 1123.
    The action was brought to recover for personal injuries sustained by the plaintiff, a boy 4% years of age, who was run over on the afternoon of August 11, 1898, by defendant’s west-bound Twenty-Third street horse car at Second avenue, and, as a result of the accident, lost bis leg. The plaintiff, accompanied by his mother, who was carrying a younger child, and by another woman, Miss Mick, alighted from the south side of an east-bound Twenty-Third street car at the west side of Second avenue, in order to transfer north, and started diagonally to the northeast corner. As they were stepping on the west-bound Twenty-Third street track, they heard a shout, and saw a horse car approaching. The woman stepped back, but the plaintiff was struck by the horses, and before the car had stopped at the westerly crosswalk was run over by the front wheel on the north side of the car. It was testified by a truckman, Harrison, who was standing on the northwest comer looking across, that when he saw the boy in the middle of the track, crossing diagonally, the horses’ heads were about three feet from him, and the driver was trying to stop the car. Miss Mick testified that they were walking across and went to step on the track, when she heard shouting, saw the car coming, and drew back, and the boy was then standing on the track screaming, and the horses’ heads were about five or six feet away. . The mother testified that the boy was walking between her and Miss Mick, and when she heard the shout, and jumped back, the horses’ heads were about five yards away, and then when she saw the child on the track they were four yards away; that the horses were not going fast and not going slow. The driver of the car, called by the plaintiff, testified that he did not see the women till he was on top of them, his horses’ heads being about five feet from them, and he did not see the boy until they had stepped back, and the horses then were right on him. Further, he testified that, although he had put on the brake and pulled hard, the car would not stop, and the brake was worn and full of holes, and of no use to a car at all, and before the accident its bad condition had been reported; that the car after he applied the brake went 15 feet, but if there had been no defect he could have stopped within 5 feet. An affidavit of the driver, made just after the accident, gives substantially the same account, but makes no mention of a defective brake. In behalf of the defendant there was testimony that the brake was in good order when inspected, a few days prior to the accident, and that no report of defect had been made, and that ordinarily the car might be stopped in 12 or 15 feet. It was further testified by one witness that he heard a shout, and, turning around, saw the women step back, and the child run forward and get struck, and he was dragged two feet. Another witness testified that the car first stopped on the east side of the avenue when the people started across. In charging the jury the court said: “The railway company * * * was bound to act under the mies of ordinary prudence. This driver says that it did not; that the brake was defective; and while the truckman, Harrison, says that he was doing all that he could to stop the car, and that it happened so suddenly, and the driver himself says that he put on the brake, the driver says that because the company had furnished him with a car with a bad brake he could not stop. Now, you will consider all the circumstances, * * * so as to make up your mind whether he told the truth.” No exception was taken to the charge, but the plaintiff made several requests, among which the following were charged, the defendant excepting: “Tenth. If the car of the defendant, properly equipped, could have been stopped in time to have prevented the accident after the driver saw the child approaching the track, you are authorized to find that it was negligence on the part of the defendant to have permitted the accident, even if you find that the person in whose care the child was, was negligent in permitting the child to get into a position of danger. Eleventh. It is a rule of law that, notwithstanding negligence upon the part of the person injured, he may recover if the railway company, after such negligence occurred, could, by the exercise of ordinary care, have discovered it in time to have avoided inflicting the injury. Twelfth. If the driver might, by the exercise of ordinary care, have stopped the car, and so have avoided the injury to the boy, neither the fact of the plaintiff's own negligence, or that of his parent or the person in whose care he was, in being on the track, contributed to the accident, constitutes a bar to plaintiff’s recovery.” The jury’s verdict was for $10,000, an’d from the judgment entered thereupon, and from order denying motion for a new trial, the defendant appeals.
    Argued before VAN BRUNT, P. J., and PATTERSON, O’BRIEN, and LAUGHLIN, JJ.
    Charles F. Brown, for appellant.
    William H. Leonard Edwards, for respondent.
   O’BRIEN, J.

There is no evidence in this record to support a finding that the driver failed to do his utmost, after knowledge that those crossing in front of him were in danger, to avert the accident. His shouting enabled the women to step back in time to avoid being struck by the horses, and his testimony, supported by that of the witness Harrison, is that he at once applied the brake and pulled in the horses. The witnesses state that the boy went upon the track but a few feet in front of the horses, and the circumstances and manner in which the accident occurred show that only a brief interval of time and space separated the existence of danger and the collision. Although the car had stopped on the other side when the people started to the northeast corner, there is nothing to show that the driver was not, as were those crossing, suddenly made aware of the danger; and, although it appears that the child was dragged two feet, it is not shown that this was the fault of the driver. The negligence in fact was predicated upon the failure of the defendant to furnish the car with a suitable brake, and it was upon this theory that the court submitted the issue to the jury.

Not satisfied, however, with the charge, to which neither side took exception, the plaintiff’s counsel urged upon the court numerous requests to charge, and introduced propositions of law which, however good in the abstract, were not applicable to the case at bar, and, as will be seen, would necessarily tend, not only to confuse, but to actually mislead, the jury. Thus, the court charged, at plaintiff’s request, the defendant duly excepting, that if the car, properly equipped, could have been stopped after the driver saw the child, there was negligence on the part of the defendant, even if the person with the child was negligent. The next request went a step further, and charged that “it is a rule of law” that, notwithstanding negligence on the part of the injured person, he may recover if the company might still by care have avoided the accident; and the following request was that, if the driver might have stopped the car and avoided the accident, the fact of plaintiff’s negligence contributing to the injury was not a bar to recovery. A request similar to this last was charged in Goodman v. Railway Co., 63 App. Div. 84, 71 N. Y. Supp. 177, and resulted in a reversal of judgment for the plaintiff. What the counsel had in mind, undoubtedly, in submitting these various requests, were cases like Weitzman v. Railroad Co., 33 App. Div. 585, 53 N. Y. Supp. 905; Green v. Railway Co., 42 App. Div. 160, 58 N. Y. Supp. 1039; and Totarella v. Railway Co., 53 App. Div. 413, 65 N. Y. Supp. 1044. In the Weitzman Case, supra, which is a good illustration, a child five years of age, upon being struck by an electric street car, fell upon the fender, and was carried along for a distance of from 32 to 150 feet, when he rolled from the fender in front of the advancing car, and was run over and killed; and it was held that, assuming the child to have been sui juris, and that his falling upon the fender resulted from his contributory negligence, it was the duty of the railroad company, when the child had reached a position upon the fender, to have prevented the injury and death of the child, if it had time and could have done so by the exercise of reasonable care. As was therein said:

“Whatever the degree of negligence on the part of the individual in the original contact, that negligence culminated in the accident which landed him in the net of the fender. From that moment a new relation existed between the parties, and any act or omission on the part of the defendant amounting to a lack of care demanded by the situation, and resulting in the death of plaintiff’s intestate, is sufficient to charge the company with negligence.”

In the case at bar, however, there were presented the ordinary questions of negligence and contributory negligence, and there was no suggestion, either in the pleadings or in the testimony, of any new situation being created after the plaintiff had come into a position of danger. Neither the cases referred to, therefore, nor the rule of law invoked by the plaintiff and embodied in the requests, had any appli•cation. It had been shown that the driver, with his utmost vigilance .and endeavor, could not stop the car, and the testimony would support the inference that the child when the accident occurred was walking between his mother and another woman, and was well taken care ■of. The tendency of the two first requests and the éffect of the last was to instruct the jury that, regardless of contributory negligence, ■there might be a recovery. Of course, if the jury had found that the parent was negligent in attempting to cross in the manner testified, such negligence, assuming the child to be non sui juris, would bar recovery ; yet the jury were instructed that a recovery could be had upon proof merely that there was negligence on the part of the defendant. The last request, particularly, was, in view of the facts, erroneous and •most prejudicial.

The judgment and order accordingly must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  