
    COURT OF APPEALS.
    Charles C. Motel, an infant, etc., respondent, agt. The Sixth Avenue Railroad Company, appellant.
    Negligence— What amounts to contributory negligence in a child eight yea/rs old.
    
    An infant, if sui juris, after lie sees the approach of a car in time to avoid it, cannot voluntarily assume the risk attending an effort to cross a railroad track and recover for an injury arising from the failure of his experiment.
    
      Decided April 27, 1885.
    Plaintiff recovered a verdict against the defendant for $10,000, and on appeal to the general term of the court of common pleas the judgment was affirmed. Judge Beaoh wrote the following dissenting opinion:
    Beach, J. — I cannot agree with the conclusion of my learned brethren. The plaintiff was eight years old, had often crossed Sixth avenue, and was chargeable with the exercise of caution commensurate with his age. From his own narration, he was about to cross between Fifty-third and Fifty-fourth streets, from east to west, with one foot on the east rail of east track; he heard the bell and saw the car advancing very fast, nine feet and nine inches from him. In this situation, by withdrawing one foot from off the rail, no harm could reach him. .The opinion prompting what he did is thrice expressed in his testimony. In answer to the court: “ I tried to get across; I thought I could get across before the horses hit me.”
    “ By the Court — Where were you when you first saw the horses ? Ans. I just put my foot on the track and then I heard the bell ringing, and I turned around and I tried to get across, but I couldn’t.”
    “ By the Court — And, after you heard the bell, didn’t you know it was dangerous to try to go across before the car passed ? Ans. I thought I would try to get across.”
    Ho evidence on part of plaintiff changed the facts above recited, and manifestly could not, relative to the time he first saw the car and the action of his mind. The plaintiff was walking, and in no situation forcing a sudden decision.
    It seems to me reasonable minds could not differ, and must draw like conclusions from this narrative. The boy, familiar with the danger, voluntarily assumed the risk attending an effort to cross. He, unfortunately, failed, but resulting calamity should not be charged against the railroad company. Those who travel the streets, if observant, see frequent instances of persons attempting to cross, with advancing ■vehicles in full sight, rather than await their passing. There is no more reason for holding one free from contributory negligence whose experiment fails than if he jumped from a moving car because he thought it could be done in safety. In my opinion, the court below should have granted the motion to dismiss the complaint.
    The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
    The defendant appealed to the court of appeals.
    
      O. E. Bright, for respondent.
    
      D. M. Porter, for appellant.
   By the Court

Judgment reversed, new trial granted, costs to abide the event, on foregoing opinion of Beach, J., in court below.

All concur, except Daneobth, J., dissenting.  