
    Henry Zlotovsky, by Guardian, Appellant, v. The Twenty-third Street Railway Co., Respondent.
    (New York Superior Court—General Term,
    May, 1894.)
    A messenger boy fourteen years and ten months old is clearly sui juris. Where the evidence in an action for injuries to such a boy, by being struck by a street car, shows that he stood between the rails of the track to allow a wagon to pass, without looking to see if a car was coming, when he might have reached a place of safety by stepping back two feet, his contributory negligence affirmatively appears and the complaint is properly dismissed.
    Appeal from judgment entered upon dismissal of the complaint at a trial with a jury, and from order denying plaintiff’s motion for a new trial.
    Action for injuries sustained by being run into by a street car. At the close'of plaintiff’s evidence the court granted a motion to dismiss the complaint, remarking as follows:
    “ I am obliged to administer the rules of law. The plaintiff does not show that he was free from contributory negligence; on the other hand, the facts in the case affirmatively show that he was guilty. You must take the circumstances into consideration — the facts of the railroad. The Court of Appeals make it specifically a duty to look on each side whence danger may be anticipated, and take proper precautions. The plaintiff did not know, nor had he looked, nor had he made any attempts to ascertain, whether there was a car on that track, a thing that was discernible by Mr. and Mrs. Dubousky, who stood immediately behind him. Without considering that circumstance at all, he waited in a place of danger. It was not too much to ask of him, for his own safety, to step back two feet where Mr. and Mrs. Dubousky were. But, in the first place, he. sees a truck coming across the way; he did not attempt to see whether there was any danger, and there is quite a good deal of evidence that up to that time he could have seen exactly what the situation was; and, on the other hand, the preponderance of evidence is that the way was clear for him to see some yards where the car was coming and protect himself. I am obliged to dismiss the complaint.”
    
      Max Altmayer (George F. Langbein, of counsel), for appellant.
    
      Henry Galbraith Ward, for respondent.
   Per Curiam.

The action was brought to recover damages for injuries received in being run down by one of defendant’s' cars. At the time of the injury the plaintiff was about fourteen years and ten months of age, and a messenger boy in the employ of the American District Telegraph Company. He was clearly sui juris. His complaint was dismissed at the trial because it appeared affirmatively that he had been guilty of negligence which contributed to the injury. The learned trial judge, on making this ruling, stated his reasons at length for holding as he did, and they were justified by the state of the evidence. It is not necessary to restate them here. The complaint was, therefore, properly dismissed.

The judgment and order should be affirmed, with costs.

Present: Freedman and McAdam, JJ.

Judgment and order affirmed, with costs.  