
    Patrick Lennon, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    
    1; Aegligehce—Crossing railroad tracks—Charge.
    In an action for injuries received by an infant while crossing railroad tracks in a street, the court charged that it was his duty to take means of ascertaining whether a train was approaching, and if he did not that his father could not recover; that he had testified that he did take such means; that while on the walk he looked both ways and saw no train, and before reaching the track he listened and heard no bell; but refused to charge that it was his duty to look for a train before entering upon the track, and if by doing so he could have seen the train and stopped, and avoided the accident, and he omitted so to look, plaintiff conn .t recover Feld, that such refusal was not ground for reversal, as the court’s attention was not sufficiently called by the request to the distinction counsel sought to make between the charge as made and, that involved in the request, viz.: that he should use all his senses and not that of listening alone.
    3. Same.
    A refusal in such case to charge that if the boy looked and saw the train and started to cross ahead of it, plaintiff could not recover, whether the boy did so taking the risk of crossing in front of it, or omitted to be governed by the fact that he had seen it. is error, where the fact in one view of the evidence was one the jury might consider, and the charge as given did not cover the proposition.
    
      8. Same—Cbedibility of witness.
    Where there is evidence that the injured boy had previously made statements to defendant’s attorney at variance with his testimony, which the boy denied, it is error to refuse to charge that if the jury find that such statements were made as to material features of the accident and its circumstances, they must take that into consideration in determining what credit to give his testimony, and could disregard his testimony altogether.
    Appeal from judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial.
    
      D. W. Tears, for app’lt; L. E. Chittenden, for resp’t.
   O’Brien, J.

This action was brought by plaintiff to recover damages for the loss of services of his infant son, by reason of personal injuries alleged to have been negligently inflicted by defendant at or near Forty-seventh street and Eleventh avenue, in^he city of New York, on May 15, 1886.

Plaintiff’s evidence tended to show that he resided on the westerly side of Eleventh avenue, between Forty-eighth and Forty-ninth streets; that the avenue, at this point and north and south of it, is 100 feet wide and straight, and defendant’s trains run in the centre on four rails at grade. It is paved like a city street; on both sides are tenement houses, and streets sixty feet wide cross it, upon some of which streets 'áre street railroad tracks, which cross the tracts of the defendant’s road at grade. The son, who resided with plaintiff, was eight years old at the time of the accident, healthy, and of ordinary intelligence, and for four years prior to the accident had crossed the avenue and defendant’s tracks three or four times daily going to and from school, and had seen a great many of defendant's trains going up" and down the avenue. The son testified that on the day mentioned, in going to call a doctor, he crossed Eleventh avenue, going down the westerly side to Forty-seventh street, across Forty-seventh street, and reached the curbstone, preparatory to crossing the avenue, at a point in front of a grocery store, fifteen feet southerly from Forty-seventh street crossing. “At the curbstone he tarried a moment, looked up and down the avenue, listened, saw and heard nothing, and then started to go across the tracks. He ran straight across for twenty-five feet, and had about cleared the second rail he came to when he was struck by one of defendant’s locomotives south bound, which was running down grade at a speed faster than a horse can trot, without ringing a bell or blowing a whistle.” Plaintiff also introduced evidence tending to show that on that day there was a light rain, and that at the time of the accident the atmosphere was foggy or hazy. As to the distance that the boy could see up the avenue, he testified that his vision was unobstructed for a distance northward of about fifty-five feet, which would be about opposite a junk shop, where there were standing about ten small two-wheeled wagons, such as are used by junk dealers.

On the part of the defendant the evidence tended to show that the injuries resulted from an attempt of the boy to board one of the cars of the defendant’s train while, in motion down the avenue, after having been warned against the attempt.

The plaintiff, in order to recover, was bound to show not only that his son’s injuries resulted from the negligence of the defendant, but also that the son himself was free from any negligence which contributed to the injuries. As to the first, the testimony adduced tending to show that, though running through a public thoroughfare at a reasonably high rate of speed, no bell was rung or whistle sounded, would be sufficient to justify the submission of this question to the jury.

Upon the other proposition, of establishing that his son was free from any negligence that contributed to his injuries, the testimony was far from satisfactory, and in view of the law as laid down in Tucker v. N. Y. Central & Hudson River R. R. Co., 124 N.Y., 809; 86 St. Rep., 272, a serious question was presented, whether it was not the duty of the court to dismiss the complaint for failure to sustain the burden with respect to this proposition which was planed Upon the plaintiff. In that case it was said: “ The law requires a traveler, before crossing a railroad track on a public highway, to look and listen for the approach of trains. If he omits, to do so and sustains injury while crossing, he cannot recover, because of such omission. That which it is his! duty to do he * * * must, In an action to recover for damages sustained,, prove was done, or at least must prove facts from which inference can reasonably be drawn that he performed" his duty in that respect. It will not be presumed that he looked. It must be-proven. The plaintiff attempted to meet these requirements by the evidence of a witness who testified that before the intestate crossed the track, in the doing of which he was struck by the locomotive and killed, he stopped in the centre of the switch track eleven feet from the north rail of the track upon which the locomotive was running, and shifted the bag which he was carrying from one shoulder to the other, resting it upon the bumper of a car-standing upon the track as be did so, and that at this time his face was turned in the direction of the approaching engine. He then passed on in a southerly direction for a distance of about fourteen feet, when he was struck. The witness further testified that, after changing the bag from one shoulder to the other, he did not again turn his bead to the left, as it would be necessary for him to do in order to see the approaching locomotive.

It is urged that inasmuch as it appears that his face was turned in the direction from whence the locomotive cornea jury should be permitted to find that he did look, and thus observed that measure of care and caution which the situation imposed. We are unable to agree with that contention. * * * But if the inference was permissible that he looked at the moment of changing the bag, it does not meet the requirements of the case. He had still six tracks to cross, and was then eleven feet from the south rail of the first track. To look then and not again, to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use, was not a proper observance of that care which it was his duty to exercise (cases cited.)”

In that case, which is in many other respects analogous to this, the reason assigned for not seeing the approaching train was the. fact that it was wiudy and snowing, while here the reason assigned is a hazy and foggy atmosphere. The' evidence here tended to show that the boy, while on the sidewalk and' preparatory to crossing, looked up and down and listened for approaching trains. Though we have the width of the avenue given as one hundred feet, the distance from the curbstone to the most westerly track, which was the portion of the street traversed by the boy before reaching the first track, is not given, but we know from the circumstance that the defendant company had but two tracks of four rails, which were placed in the centre of the avenue, that this space was greater than eleven feet.

In the Tucker case, as we have seen, although there was evidence to show that when within eleven feet from the track the person injured looked, it was held that this was not a sufficient ■discharge of the obligation which requires a traveler on the highway, before crossing a track, to look and listen for the approach of trains. And, to repeat what is stated in that case respecting what was done by the person injured when but eleven ■feet from the track, “ to look then and not again * * *'' was not a proper observance of that care which it was his duty to exercise.”

It is unnecessary, however, for us, in view of other exceptions taken to rulings made, which we regard as good, to place our reversal upon this ground. But we have alluded to this feature of the case in order to emphasize one of the exceptions referred to which the defendant urges upon this appeal. The learned trial judge refused to charge the defendant’s seventh request: “ That it was the duty of the boy, William Lennon, to look in the direction from which a train was to be expected on the track before entering upon the track; and if by so looking he could have seen the train and stopped, and avoided the accident, and he omitted so to look, the plaintiff cannot recover.”

It is true that the court had charged that: It was the duty of William Lennon, when he was about to cross the track, to take means of ascertaining whether there was or was not a train approaching on that track, and if he neglected to take some means, the means that you would expect from and of a child of his age, and if he was injured by reason of his neglect to take such means, then his father cannot recover in this action. He says he did take such means. He says that, as he was standing on the walk, a short distance south of the southerly line of Forty-sixth street and Eleventh avenue, he looked north and south to see whether there was,any train approaching. He says that after he left the sidewalk, and before he reached the track, he listened, and heard no ringing of the bell.”

It will thus be seen that the defendant’s attorney, by exception to the charge, again raised the point presented by the seventh request, that looking and listening on the sidewalk, and thereafter neglecting to again do both while traversing the space between the sidewalk and the rail, was not a compliance with the duty resting' upon liim.

Were this the only refusal to charge requests to which the defendant was entitled, we should not disturb the verdict, because, had the court’s attention been more specifically directed to. the distinction which the defendant’s counsel sought to make between the broader proposition contained in his request, as to the necessity of using all his senses, as contrasted with the more limited exposition of the law given by the court in its charge, that the boy’s duty might be discharged by listening simply, it would, no doubt, have been corrected. The defendant, however, asked the court to charge that, “ if the boy, William Lennon, looked and saw the train and started to cross ahead of it, the plaintiff cannot recover, whether the boy, William-Lennon, started to cross, taking the risk of crossing in front of the train, or omitted to be governed by the fact that he had seen it.”

This was refused. As there was no passage in the charge-covering the proposition embraced in this request, and as in one view to be taken of the evidence it was one which the jury might, consider, the defendant was entitled to have them instructed upon this p&int, and the refusal so to instruct them, we think, was-error'.

In addition to this, it appears that during the trial evidence was offered to show that in material respects the testimony of the boy, given upon this trial, was different from his version upon the occasion of his visit some time prior thereto to the office of the defendant’s attorney, where it was taken by a stenographer and used upon the trial. The boy’s attention was called to the discrepancy thus appearing between his two statements relating and leading up to his injuries, and he was permitted to explain, which, in the main, resulted in his denial of the making of the first statement in the office of the defendant’s attorney. In his charge the court in no way referred to this circumstance, and the defendant thereupon requested: That if the jury believe that the boy William Lennon has heretofore made a statement in conflict with his testimony as to material features of the accident and its circumstances, they must take that into consideration in determining what .credit they will give to his testimony, and have the right to disregard his testimony altogether.” The court made answer: “I refuse to charge, except as I have charged.” As there was no reference or allusion in the charge in any way to the discrepancy thus appearing, and as the- request contained a correct statement of the effect which the jury should give to such discrepancies as bearing upon the credibility of the witness, there was no reasonable-ground for refusal, and, the defendant having the right thereto,, such refusal was error.

Besides these, many questions in respect to the. admissibility of evidence have been pressed upon our attention ; but, in view of what we regard as errors in the court’s presentation of the case to the jury, it is unnecessary to consider them, the latter, in our opinion, requiring that the judgment should be reversed and a new trial granted,, with costs to appellant to abide the event

Van Brunt, P. J.

(concurring)—I am of the opinion that the complaint should have been dismissed. Concur in reversal and new trial.  