
    OROFINO v. NEW YORK STATE RYS.
    (Supreme Court, Trial Term, Ontario County.
    March 16, 1911.)
    Street Railroads (§ 95)—Injuries to Pedestrians—Negligence.
    To run a trolley car approaching a frequented thoroughfare near a populous village at such speed that it cannot be stopped within 750 feet to prevent running over a child plainly seen on the track is actionable negligence.
    [Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 179, ISO, 202; Dec. Dig. § 95.]
    Action by Angelo Orofino, as administrator, against the New York State Railways. Judgment for plaintiff.
    S. M. Vella, for plaintiff.
    Wynkoop & Rice, for defendant.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BENTON, J.

The jury herein has specifically found in answer to questions that the motorman used reasonable diligence in discovering the child and in stopping the car, that the car was running at a reckless and dangerous rate of speed as it approached the crossing, that it was run at such speed as to be beyond reasonable control in approaching such crossing, and that defendant was negligent and plaintiff was not.

The evidence shows that the crossing was in the outskirts or a little way east of the village of Victor over the highway leading to said-villoge. Defendant introduced evidence to the effect that by tests it had been determined that a car such as this, running at about the rate of speed this car was running, could not be stopped within about 750 feet. To grant defendant’s motion is therefore to hold that a trolley car running upon its own right of way may approach a frequented thoroughfare near a populous village with a car running at a reckless and dangerous rate of speed, so as to be beyond reasonable control, and though for a distance of 750 feet a helpless child can plainly be seen upon the track, nevertheless it may be legally run over and killed. We may soften the language by talking of accident and misfortune, the needs of commerce, and the public demand for speed; but the result is the same. I cannot hold that that is law. I think it had better be held that the railway corporation must either improve its appliances for stopping the car, diminish its speed, or abolish grade crossings.

Defendant’s motions are therefore denied, and judgment ordered for the plaintiff upon the verdict, with $10 costs to plaintiff. A stay of 60 days after judgment is granted defendant.  