
    Francis Byrnes, an Infant, by Mary Byrnes, His Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    January 19, 1912.
    negligence — injury to pedestrian crossing street — proof not justifying recovery.
    In an action brought to recover for personal injuries sustained by the plaintiff, a boy between ten and eleven years of age, who was struck by defendant’s street car, the plaintiff testified that when he stepped down from the curb he looked and saw the car approaching quite rapidly, and that it was then about thirty feet distant; that he walked slowly and diagonally toward the car track, intending to reach' his father on • the opposite side of the street, .and did not look or pay any further attention to the ear until he was about to step on the first rail of the track, when the car was only about twelve or fifteen feet away; that he then attempted to retrace his steps, but was struck by the fender of the car.
    
      Held, that the judgment for the plaintiff should be reversed because of a failure to show the defendant’s negligence or the plaintiff’s freedom from contributory negligence.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 1st day of March, 1911, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Martin T. Manton, for the respondent.
   Woodward, J.:

The plaintiff, a boy between the age of ten and eleven years, stepped down from the curbstone on the right-hand side Of Nostrand ayenue, near Floyd street, in the borough of Brooklyn, and walked slowly in a diagonal line with the defendant’s track, stepping upon the same, when he was struck by the right-hand corner of the fender,, sustaining injuries for which the jury has awarded a-ver diet of $100. The plaintiff testifies that just as he stepped down from, the curb, he looked and saw defendant’s car approaching quite rapidly; that the car was then about half a block away, though upon cross-examination he reduces this distance to about thirty feet. He says that he then walked diagonally toward the car track, intending to reach his father on the opposite side of the street, and did not look or pay any further attention to the car until he was about to step on the first rail of the track, when he heard the motorman call; that he then tried to stagger back from the track, but was unable to do so until after the car fender had reached and hit him. It does not appear from the evidence just what the distance was between the curb and the car track; there was evidence that there was room for a. truck to pass, but whether there was any considerable margin does not appear, nor is the evidence clear as to how far the plaintiff walked slowly along the track and diagonally toward it, but it is certain that the evidence does not show any degree of care on the part of the plaintiff, and the motorman in the middle of a block was not bound to anticipate, that this boy of ten or eleven years of age, with an unobstructed view, was going to step upon the track in front of the advancing car. The boy does not claim that he did not see the car approaching; he says it was coming at a rapid rate, thirty feet or more away when he stepped down, and that he walked slowly in a diagonal line with' the defendant’s track without paying any further attention to the car until the motorman called to him, and it appears that the motorman called to him just as he was in the act of stepping into a place of danger, and at which time the car was only about twelve or fifteen feet away, which would bring the fender only about nine to twelve feet from the plaintiff at the time he stepped into the track of the car, and the evidence would seem to indicate that this distance was even less. There was no evidence that the plaintiff was engaged in exciting play, or that he was moving in such a manner as to indicate that he was oblivious to danger; he was walking slowly in the same general direction the car was running, gradually drawing toward the same, and the evidence neither discloses that the car was being recklessly run nor that there was anything which called upon the defendant’s motorman to anticipate danger to the plaintiff. He could walk along the side of the track within eighteen inches to two feet of it without danger to himself, and if street cars owe the duty of slowing down every time any one gets near enough to enable them to step into, a position of danger public traffic would be seriously impeded. Pedestrians can and do stop just short of the danger line in thousands of instances every day, and unless there is something to indicate to the motorman that a different result is ^contemplated, there is no reason why he should not operate his car at the usual rate of speed at points other than street crossings. Of course if children are at play in the streets it is his duty to sound warnings and to take precautions against the pranks of children under such circumstances, but there were no special conditions shown here. A boy of ten or eleven years! of age, who is not shown tó be deficient mentally, must be presumed to know the danger to be anticipated from crossing in front of a moving car, and where the evidence shows that the plaintiff, without looking at any time when the obligation was upon him tó look, and when the exercise of any degree of cafe would have obviated the accident, deliberately walks into a ¡position of danger, under the circumstances shown here, it is riot proper to subinit to the jury the question either of the defendant’s negligence.or that of the plaintiff’s lack of contributory negligence, for there is no evidence to support a verdict in his fator.

The judgment and "order appealed from: should be reversed and a new trial ordered, costs to abide the event.-

Jenks, P. J., Burr and Thomas, JJ., concurred; Rich, J., taking no part.

■ Judgment and order of the County Court of Queens county;, reversed and new trial ordered, costs to abide the event.  