
    ANTONIO MINICHINO, BY NEXT FRIEND, RESPONDENT, v. PUBLIC SERVICE RAILWAY COMPANY, APPELLANT.
    Submitted July 7, 1913
    Decided October 8, 1913.
    On appeal from the Supreme Court, in which the following per curiam was tiled :
    ' This is an action for personal injuries. The plaintiff, a hoy three and a half years of age at the time of the accident, while sitting upon the ties just outside the north rail of the eastbonnd track of the defendant’s railway between Jersey City and Newark, was struck by the running-board of an open car. The plaintiff had a verdict, and the judgment entered thereon is now before us for review.
    The only matter argued by counsel for the plaintiff in error is the refusal of the trial court to direct a verdict in favor of the defendant. It is contended that this course should have been pursued for the reason that the testimony disclosed no negligence on the part of the defendant’s employes who were operating the car. The testimony shows that the motorman saw the hoy in plenty of time to stop his car before it reached the place where the boy was sitting, but thought that what he observed was a dirty piece of paper, and so gave the matter no thought until he was within a few feet of the plaintiff, when the latter raised up. The motorman thereupon applied the emergency brake, but too late to avoid the accident. We do not think that it can be said, as a matter of law7, that the rmotorman was not negligent. It. was a question for the jury to say whether, having observed this object on the track, he exercised reasonable care in running it down without first ascertaining whether it w7as what it appeared to be, or whether it was, as it turned out to he, a human being.
    The judgment under review7 will be affirmed.
    
      For the appellant, Lefferts S. Hoffman.
    
    For the respondent, Beecher <£■ Bedford.
    
   Per Curiam.

The judgment is affirmed, for the reasons stated in the memorandum of the Supreme Court.

For affirmance — -Swayze, Tren chard, Parker, Kalisch, Yredenburgh, Congdon, Wi-iitb, Terhune, Heppenl-IETMER, JJ. 9.

For reversal — None.  