
    Joseph Adams, an Infant, by Louis Adams, his Guardian ad Litem, Appellant, v. Nassau Electric Railroad Company, Respondent.
    
      Negligence — a-child crossing a street in front of-an electric car— a question of fact presented as to the duty of the motorman.
    
    Testimony that a child less than five years old started to run across a street in front of a rapidly-moving electric car, 100 feet distant, raises a question of fact whether prudence on the part of the motorman would require him to act upon the assumption that the child was about to attempt to cross the street in advance ■of the car and demand that lie regulate its speed so as to avoid a collision.
    
      Appeal by the plaintiff, Joseph Adams, an infant, by Louis-Adams, his guardian ad litem, from a., judgment of the Supreme; Court in favor of-the defendant, entered1 in the office of the clerk of the county of Kings on the 20th day of December, 1899, upon the-dismissal of the complaint by direction of the court after a trial ' before the court and a jury. ’ •
    
      S. S. Whitehouse, for the appellant.
    
      Henry Yonge, for the respondent.
   Willard Bartlett, J. :

This case has been twice tried. The first trial resulted in a judgment in favor of the plaintiff, which was' reversed on appeal upon the ground that the evidence did not establish the negligence of the defendant. (Adams v. Nassau, Electric R. R. Co., 41 App. Div. 334.) The learned judge who presided at the second trial dismissed the complaint at the close of the evidence on both sides because, .in his opinion, the case had not.been materially changed from what it was upon the former appeal.

•In this view we .are unable to concur. Upon several points which were-emphasized by Mr. Justice Hatch as reasons for reversing the. former judgment, the proof upon the second trial differed radically ■ from that given upon the first. This is true in respect to the speed of the car at the time of the accident-, the position of the plaintiff when struck, and the distance of the car when the plaintiff started to-cross the street. Mr. Justice LIatcii said in his opinion that the fair-preponderance of all the testimony on the first trial was to the effect: that the car was proceeding at the rate of about six miles an hour,. ■ which was the usual rate in the locality where the accident occurred.. On the trial now under review the conductor and a passenger, who were not called as witnesses upon the first trial, testified that just: before the accident the car was going at the rate of about fourteen to fifteen miles an hour. This evidence sufficed to make a question for the jury as to the rate of speed. Mr. Justice Hatch dealt with the case upon the assumption that the plaintiff ran into the .car rather than the car into the plaintiff ; and- he spoke of it as a fact' that the child did not reach the track until some part of the car had passed him. Upon this appeal, however, the case cannot be disposed of on the same assumption, for the plaintiff’s father testified on the second trial that the child stepped upon the track on which the car was approaching him when the car was about ten or twelve feet away, and that the front of the fender struck the child.

The third important point of difference between the proof on the first trial and the proof on the second trial relates to the position of the car when the plaintiff started to cross the street. A witness, who was not called upon the first trial, testified that when he saw the boy start to cross Central avenue the defendant’s car was on Eldred street. According to the map this would be at least 100 feet' from the boy. The same witness said that the boy was running across. Under these circumstances, where a boy less than five years old started to run across the street in front of a rapidly moving electric car, 100 feet distant, it might well be that prudence on the part of the motorman would require him to act upon the assumption that the child was going to attempt to cross the street in advance of his car, and might demand that he should regulate its speed so as to avoid a collision. Upon the evidence in the record now before us, this was a question of fact for the jury.

In behalf of the defendant it is earnestly argued that the father of the plaintiff has changed his testimony since the first trial, and that the new witnesses are shown to be unworthy of belief by reason of the statements made by them out of court in conflict with their subsequent testimony. We cannot hold, however, that their evidence should be discredited as matter of law. It should be submitted to the jury, with proper instructions as to the rules by which they should be guided in endeavoring to arrive at the truth.

For the foregoing reasons we are compelled to direct a reversal of the judgment.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  