
    Julius Weiss, as Administrator, etc., of Bertha Weiss, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence — an eight-year-old child killed while crossing a street by a street car — contributory negligence — degree of can'e required of the child.
    
    A child eight years and four months old, of. ordinary intelligence, good eyesight and hearing, accustomed to go upon the street unattended, arid regarded by her father as entirely competent to take care of herself, was observed 21 feet from a street railroad track upon which she was killed, looking in the direction of an approaching car, then over 100 feet away, on a bright day, with nothing to obstruct her view or prevent her seeing the car.
    She was also observed to start towards the track and was struck and killed by the car just as she stepped upon the first rail or in the middle of the track.
    
      Held, that if it should be conceded that the railroad company wns negligent in not controlling the car in such a way as to prevent the accident, the same facts which would establish its negligence also established the negligence of the child, the child traveling the 21 feet in the same space of time that the car traveled the 100 feet, and the child having the same opportunity to observe the movements of the car as the motorman had to observe her movements;
    That although the child, on account of her age, was not required to exercise the same degree of care which would be required of an adult, she was still required to exercise care commensurate with her age and intelligence.
    Appeal by the plaintiff, Julius Weiss, as administrator, etc., of Bertha Weiss, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of December, 1897, upon the dismissal of the complaint at the .close of the plaintiff’s case by direction of the court after a trial at the New York Trial Term, and also, from an order bearing date the 9th day of December, 1897, and entered in said clerk’s office, denying the motion of the plaintiff for a new trial made upon the minutes.
    
      Otto Horwitz, for the appellant.
    
      Charles F. Brown, for the respondent.
   McLaughlin, J.:

Plaintiff’s intestate, a daughter eight years and four months old, in attempting to pass over Lexington avenue, between One Hundred ■and Sixth.and-One Hundred and Seventh streets, in the city of New York, was struck by one of defendant’s ■ cars and killed, and this ■action was brought to recover damages upon the ground that her ■death was caused solely by reason of the negligence of the defendant. Upon the' trial, at the close of plaintiff’s case, the complaint was dismissed because, in the opinion of the learned trial justice, the plaintiff had failed to establish that the deceased was free from contributory negligence. The ruling thus made presents the only question for our consideration on this appeal.

It appeared upon the trial that two persons witnessed the accident, Nathan Pincus and his daughter Eva, and their testimony tended to ■show that the deceased was killed between twelve' and one o’clock in the afternoon, on a bright, clear day, at a place where there was ■an unobstructed view of the street and of the car in question for something over 100 feet;, that when they first observed the deceased, ■she was standing by the curbstone in front of the store occupied by them, on the east side of Oolumbus avenue, between One Hundred ■and Sixth and One Hundred and Seventh streets, and that the distance from where she stood to the nearest rail of the track on which the car was approaching was about 21 feet, and that the' car was ■then near One Hundred and Seventh street, nearly or quite 100 feet :away; that they observed the deceased looking up and down the ;avenue,- and then start towards the track, but their testimony failed to disclose .what precautions, if any, were thereafter taken by her. One of the witnesses testified that she was struck in the middle of the track, while the other, that she was struck just as she was stepping on the track.' In either case it is apparent that, had she exercised any care whatever before going upon the track, her life would have been spared. It is undisputed that, after the car left One Hundred and Seventh street, she could have seen it if she had looked. It is not even suggested that her movements towards the "track, after leaving the curbstone, were impeded in • any way; that her vision was obscured; that her attention was distracted, or, indeed, that anything occurred that could have prevented her seeing the ■approaching car and avoiding the accident, had she exercised any care whatever. We have thus presented this state of facts: A-•child eight years and four months old, of ordinary intelligence good eyesight and hearing, accustomed to go upon' the street unattended, regarded by her father as entirely competent to take care of herself, was observed 21 feet from the track upon which she was killed, looking in the direction of an approaching car then over 100 feet, away, on a bright day, with nothing to obstruct her view or prevent her seeing the car; she is also observed to start towards the track, and is struck and killed by the car just as she steps upon the iirst rail, or else in the middle of the track. If it be conceded that the defendant was negligent in not controlling the car in such a way as to prevent the accident, the facts which establish its negligence also ■establish the negligence of the deceased. No other conclusion can be reached. The child and car were both approaching the same jDoint on the track. The car had 100 feet to go, and the child 21. The child traveled the 21 feet in the same space of time that the car traveled the 100 feet; she had the same opportunity of observing the movements of the car as the gripman did her movements. If the gripman, therefore, was negligent in • not seeing her and stopping the car, and thus avoiding the accident, she was equally negligent in not seeing the. car, or in stepping in front of it. The defendant was under no more obligation to exercise care to prevent injury to her than she was to exercise ■care to prevent injury to herself. It is true on account of her age she was not required to exercise that same degree of care which ■an adult would be required to exercise; nevertheless she was bound to exercise some care, care at least commensurate with her age and intelligence. The rule seems to be well settled that an infant, whatever his age may be, is not in law excused from exercising ■some care in approaching and passing known places of danger. If he fails to do this and is so young that he is termed in law non sui jxiris, then his negligence is imputed to his parent or guardian. The case at bar is much like Fenton v. Second Avenue Railroad (126 N. Y. 625), where a boy nearly ten years old was killed, and the observation made by the Court of Appeals in that case in reversing the judgment is quite applicable here. There was nothing,” says the court, “ requiring this boy to run across the track at this particular place and time. If he had walked he probably would not have fallen, and if he had waited two or three seconds the car would have passed and he could then have gone over the street in safety. .Street railway cars have a preference in the streets, and while they must be managed with care so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care tó . keep out of their way. The unfortunate death of this boy was due to his own carelessness, or it was a pure accident, and in either event the defendant cannot be held responsible for it.” And to the same effect is Bello v. Metropolitan Street Railway Co. (2. App. Div. 313); Costello v. Third Avenue R. R. Co. (26 id. 49) ; Trafton v. Met. St. Ry. Co. (29 id. 631); Wendell v. N. Y. C. & H. R. R. R. Co. (91 N. Y. 425). In all of these cases, except the Trafton ease, the injured person was ;an infant, but a recovery, was denied . on the ground of contributory negligence. Thus in the Wendell cáse the infant was seven years of age; in the Bello case, eight years and ten months; in the Fenton case, ten years; in the Costello case, eight years.

It would seem that the deceased either did not look to see whether a car was approaching, or, if she did, then she blindly and heedlessly walked in front of it. In either case, one is irresistibly led to the conclusion that her death resulted in part, at least, from her own negligence.

It, therefore, follows that the complaint was properly dismissed, and the. judgment must be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with eobts.  