
    Emily Hicks, an Infant, by John Hicks, her Guardian ad Litem, Respondent, v. Nassau Electric Railroad Company, Appellant.
    
      Negligence as a matter of law —■ a child crossing a street at a crosswalk who sees, at a distance of 127 feet, a car rapidly appi'oaching her.
    
    A child nine years of age and sui juris, who, upon reaching a crosswalk at a street intersection in a well-settled portion of the borough of Brooklyn, observes a car, 127 feet' distant, rapidly approaching the crossing, and who, without again looking or listening or making any effort t'o learn whether the dangerous speed of the car had been modified, proceeds to cross the track — a distance of about 16 feet — walking, as she testified, “not too fast, and not too slow; just right,” is not guilty of contributory negligence, as a matter of law. 1
    
    Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of September, 1899, upon the verdict of a jury for $16,666, and also from an order entered in said clerk’s office on the 5th day of September, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      John L. Wells, for the appellant.
    
      William B. Maddox [ William T. Gilbert with him on the brief] for the respondent.
   Goodrich, P. J.:

In June, 1898, the plaintiff, a girl of nine years, while going to school, was run over by a car of the defendant and thereby received injuries so severe as to necessitate the amputation of one of her legs at the knee joint. The accident occurred at the corner of Stockholm street and Central avenue, Brooklyn, and at the time the car in question was running along Central avenue in a northerly direction and at a high rate of speed; the child desired to cross Central avenue from the easterly to the westerly side. On the direct examination she testified: “ I got' to the corner and I stepped down the * curbstone. At that corner I saw a car coming down the street. It was right by the Indian, the Indian head; that image of an Indian on Central avenue (by measurement, 127 feet distant). * * * I saw the car as' I stood there coming towards me, opposite the Indian. Q. State what you did from that time on. A. I walked right on to school and the car came —■ I stepped over the first rail and I don’t know any more from that.” On cross-examination she testified : “ I looked up and down for the car because I thought maybe I would get run over if I didn’t look up and down. I knew that the car was a dangerous thing;; and I saw the car. * * * When I saw that car coming at that distance I thought maybe I could get across before it come, so I stepped down on the curbstone, had my foot over that track, and that is all I re member. I didn’t run ; I walked. Q, Didn’t you walk very fast? A. Not too fast, and not too slow; just right. I did not walk fast; just.right; not too fast and not too slow. Q. I know, but did you walk fast or did you walk' slow ? A. Pretty — not too fast.”

After such testimony, the learned court committed no error in charging the jury, at the request of the defendant, that the child was sui juris.

We have, then, the case of a child attempting to cross a street at a crosswalk, after seeing a swiftly-approaching car 127 feet distant, with no evidence that she again looked or paid any further attention to the approaching car.

• The only exception which seems to us to require serious consideration was taken when the defendant excepted to the refusal of the court to charge its request, as follows : “ If the plaintiff, when she was at.the 'curb, saw the ear at- that' time, ;a distance, of 127 feet, coming on at what was or what appeared to her to be a very high or dangerous rate of speed, with no effort being made to check its progress, and with nothing in the situation which justified her in believing that the car would be brought under control, and then if she persisted and proceeded to walk on towards the track to cross without looking or listening, and without any effort to learn if the -dangerous speed of the car had been changéd, then she was guilty -of negligence and cannot recover.”

This request assumed that the plaintiff knew the following facts when she first saw the car and attempted to cross the- tracks: 1. The car was 127 feet distant. 2. It was coming at a high and ■dangerous speed. 3. No effort to stop its'progress was being made. ■4. There was nothing in the situation to justify her in the bélief that it would be brought- under control. 5. She crossed without .again looking or listening, and without any effort to learn whether the dangerous speed had been modified. The refusal of this request requires a consideration of two questions, whether there was evidence to support the facts assumed, and whether the court had not •already charged the same or equivalent propositions.

First. As to the evidence: The first, second and fifth statements •of assumed fact are based on the plaintiff’s own testimony, as well .as on the other evidence in the case. Several witnesses testified as to the distance of the car from her as she stood at the curb, and as to its high rate of speed. As to the third statement, the defendant •called no witnesses. It is familiar doctrine tliat the failure of an ■employer to call a witness who was in his employ at the time of the ..accident, and is presumed to be friendly and to have some knowledge of the accident, without any attempt to explain the reason of the failure, raises a strong presumption that the testimony of the employee would be damaging to such party. (Gordon v. The People, 33 N. Y. 501; Schwier v. N. Y. C. & H. R. R. R. Co., 90 id. 558; The People v. Hovey, 92 id. 554.) Ye must assume, .therefore, that the motorman made no effort to check the speed of .the car until the moment the plaintiff was struck by the fender. It -remains necessary to consider only the fourth statement, that there was nothing to justify the plaintiff in the belief that the car would be brought under control. We find no evidence to support this .assumption of fact. Leaving out the question of the tender years of the child, and even though she was sui juris, can it be held that ■she was bound to consider at all the question whether or not the car, while running a distance of 127 feet, would be brought under control, where there is evidence that when the motorman saw the child he actually did bring the car to a standstill within ten or fifteen feet -of the crosswalk where the plaintiff was struck % How can it be said that the plaintiff possibly could possess knowledge utterly at: variance with the evidence, and was bound by such knowledge? The request was not in accord with the facts disclosed by the evidence, and. there was no error in the refusal to charge, for it cannot, be said, as matter of law, that, even on the statements of the request, the plaintiff was guilty of contributory negligence. Besides, the request ignored the fact that the plaintiff received her injury at a. crosswalk, where she had the right to assume that especial care-would be taken by those in charge of an approaching car to prevent injury to persons crossing, all the more that the crosswalk was on-the farther side of the street from the approaching car.

Next, as to whether the court had not already properly charged: as to the facts disclosed by the evidence: The court referred to the-plaintiff’s testimony that she saw the car 127 feet distant, coming at. a high rate of speed, and as to the distance she had to ■ go before^ getting entirely -across the tracks, and said : “Was it careless in her-seeing that approaching car coming at a high rate of speed to cross- and to assume that the rate of speed would be lessened in approaching that crossing ? It was the duty of the defendant, through its-servants, in approaching that crossing to have its car under control, and to exercise care that pedestrians in attempting to cross at that, point could safely cross.' That was their duty. Was it negligence-on her part to attempt to cross assuming that that duty would be-discharged?” .

We think the charge, in effect, covered the statements of the-defendant’s counsel, assumed in the request to charge, so far as they were established by the evidence.

It cannot be said, as matter of law, that under the evidence the.plaintiff 'was guilty óf contributory negligence. While she was-mi juris, she can only be held to such a decree of care as a child of her years and character would reasonably be expected to exercise. .May not a child of that age, desiring to cross a street at a. crosswalk on the farther side of a street toward which a car 127 feet. r distant is rapidly approaching, assume that the car will slow down before crossing the crosswalk, so as to enable him to go from the: curb.at one end of the crosswalk to a place one foot beyond the. farther track, a total distance of about 16 feet, as shown by the diagram, without being guilty of contributory negligence ? Must he-. look at the car again, under such circumstances ? It will be observed that the request assumed that the car was 127 feet away. Now, a car running 15 miles an hour moves 1,320 feet each minute, or 22 feet each second and 127 feet in ahont 6 seconds. - Must a person, about to cross a street at a crosswalk, walking “ not too fast and not ■too slow, just right,” as the plaintiff testified, and seeing a car which will require 6 seconds to reach him, defer his crossing until the car has passed, or must he continue to watch the car or even look again before crossing the rails,'provided he cross with ordinary speed %

We must not lose sight of the fact that the plaintiff was using a crosswalk in a well-settled portion of the borough, and that the defendant was bound to exercise greater diligence than is. required in outlying and thinly-settled districts and elsewhere than at crosswalks of intersecting streets. (Dunican v. Union Ry. Co., 39 App. Div. 497.)

An examination of numerous cases cited by both parties confirms our views, that the evidence required the court to submit to the jury the question whether the plaintiff was guilty of contributory negligence.

The writer of this opinion, while believing that the verdict is excessive, yields to his associates on that point.

Judgment and order unanimously affirmed, with costs.  