
    Waldo R. Margulies, an Infant, by Anna R. Margulies, His Guardian ad Litem, Respondent, v. Interurban Street Railway Company, Appellant.
    First Department,
    December 7, 1906.
    Negligence — pedestrian struck by street car—• contributory negligence in failing to look — when proof of infancy and infirmities immaterial ■ — erroneous charge.
    In an action to recover for injuries resulting from a collision with a street car where the plaintiff testifies that the only time he saw the car was from the sidewalk before starting to cross the street when he looked in both directions and observed a car approaching on the second of two parallel tracks between one and three blocks distant; that he then walked “ almost slowly ” across and again looked in both1 directions when within five feet of said track, he has failed to show freedom from contributory negligence where it appears that, although deaf, his eyesight was good, and that there was a brilliant headlight on the car.
    Although the case was submitted to the jury on all the facts and the evidence shows that the plaintiff was an infant and was suffering from certain infirmities, he was mi juris, a youth of good understanding and education and was ■ not absolved from the responsibility of endeavoring to protect himself "in a position of such imminent peril.
    It is reversible error to charge: “If the jury find from the evidence that when ■ the plaintiff started to cross Amsterdam Avenue the car was at-such á distance as to warrant the assumption'of safety by the plaintiff in the attempt to' cross,, it is immaterial whether plaintiff looked or did not look to observe the . approaching car."
    Appeal by the defendant, the Inter urban Street Railway Cem-t pony, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York-on the 8th day of January, 1906, upon a verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 8th day of January, 1906, denying the defendant’s motion for a new trial made upon the -minutés.
    
      Henry L. Scheuerman, for the appellant.
    
      Louis Hicks, for the respondent.
   Patterson, J.:

On the,plaintiff’s own testimony, given on the trial of'this.action, it is apparent that he has not sustained, the burden which rested upon him of showing freedom from contributory, negligence inducing . the' accident from which he suffered grievous injuries.

On the evening of February 14, 1903, lie was at- the'north crosswalk of One Hundred and Forty-eighth street and Amsterdam avenue, on the westerly side of the street. He was intending to cross to the northeast corner of the avenue. He looked tip and down the avenue before starting and saw that there was a car advancing on the north-bound or easterly track of the defendant’s railway. • He vaguely located it somewhere between.One Hundred and Forty-fifth and One Hundred and Forty-seventh streets., He says he crossed the south-bound or easterly track, intending to pass,over the' north-bound track, but before he could do -so, he was struck by a car with'very disastrous consequences to himself. He testifies that the accident occurred at eight o’clock at night; that the only .timé . lie 'saw the car was when -he was on the sidewalk on file west, side • of the avenue, north of One Hundred and Forty-eighth street'; that - liis sight was good and that while crossing the avenue he was walking almost slowly; that when he came.within, fivé feet of .the north bound- track, he looked again and when asked why he looked both ways for a car when within five feet of the north-bound track, he stated that there might be a horse coming from the north. So that he not only looked when he was at this short distance from the north-bound track, but gave a reason which induced him to look, thus showing deliberation and purpose in looking a second time.

It is established by the proof that the car which struck the plaintiff had a brilliant headlight then burning and it is scarcely conceivable that the plaintiff at a distance of. five feet, looking for a car, should have failed to see it. It is. true that liis attention could not have been arrested by the nois'e of the car, for he was completely deaf, but his eyesight was good. If he saw the car, he certainly stepped in front of it recklessly. If he did not "see it, he should have seen it, and in such circumstances) by his own statement, he was negligent. (Strickland v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 371; Daniels v. Staten Island R. T. Co., 125 N. Y. 407; Madigan v. Third Avenue R. R. Co., 68 App. Div. 123; Kappus v. Met. St. R. Co., 82 id. 13.)

- It is true that the case was submitted to the jury upon all the acts. The plaintiff was an infant and upon all the evidence this court charged the jury' that - In determining whether an infant, though he be sui juris is chargeable with contributory negligence, his acts are to be considered with reference to his age, development, condition and ability, mental and physical.” Without commenting upon the correctness of that instruction in this particular case, it is obvious that this plaintiff, though suffering from certain infirmities, was a youth of good understanding and of education. The accident occurred in February, 1903, and we find him in June of the same year, after the accident occurred, taking the Regents’ examinations. There is nothing in the whole record which would indicate that the plaintiff was absolved from the responsibility of endeavoring to protect himself when he was in imminent peril of almost immediate contact with the car which ran him down.

Even if the views thus far expressed are not controlling, the judgment appealed from must be reversed because of an erroneous instruction to the jury which must have been influential in bringing about their verdict. At the request of -the plaintiff, the court charged as follows: If the jury find from the evidence that when the plaintiff started to cross Amsterdam Avenue, the car was at such a distance as to warrant the assumption of safety by the plaiiir ■ tiff in the attempt to cross, it. is immaterial whether plaintiff looked or did not. look to observe the approaching car.” It is apparent, we think, that this instruction was unnecessary,, inappropriate and . misleading. It' took away from the consideration of the jury every incident connected with the- plaintiff’s, acts -in Crossing the street and left, to their determination the simple question of the distance of the car from .the plaintiff when he first observed it, as warranting. his assumption of safety in an attempt to cross; that is to say, if the car was far enough away to enable the plaintiff to cross, irrespective of all other conditions, he was absolved from any obligation of attention or observation. • It is argued that support for this request is to be fotind in the Case of Monck v. Brooklyn Heights R. R. Co. (97 App. Div. 447), but we do not understand that case to' go so far. The instruction given in this case enabled the jury to ignore every circumstance that supervened between the titile at which the plaintiff observed the Car on the north-bound track until, ■ he was struck,, if they should find that when the plaintiff undertook .to cross the car was at a sufficient distance to .enable him to cross in safety. The instruction, is contrary to- what was held in Lynch v. Third Ave. R. R. Co. (88 App. Div. 604); Du Franne v. Met. Street R. Co. (83 id. 303); Greene v. Met. Street R. Co. (100 id. 304); Biederman v. Dry Dock, E. B. & B. R. R. Co. (54 id. 294); Barney v. Met. Street R. Co. (94 id. 395); Furlong v. Met. Street R. Co. (103 id. 217); Knapp v. Met. Street R. Co. (Id. 253) Lofsten v. Brooklyn Heights R. R. Co (184 N. Y. 148).

The judgment and order appealed from should be reversed and a. new trial ordered', with costs to appellant to abide the event.

McLaughlin, Houghtoñ and Scott, JJ., concurred.

Ingraham, J. (concurring):

I concur on the ground' of error in the charge as stated’ in Mr, Justice Patterson’s opinion.,

Judgment and order reversed,'new trial ordered, costs to appellant to abide event.  