
    William Csatlos, an Infant, by John Csatlos, his Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—injury to a child stepping upon street-railroad tracks directly in front of a car — change that the railroad- company might be held liable notwithstanding ■ the plaintiff’s contributory negligence.
    
    
      ■ In an action to recover damages for personal injuries sustained by the plaintiff, - a boy four and a half years of age, in consequence of being run over by one of the defendant’s street cars while crossing a street in the city of New York, it appeared that the plaintiff was accompanied by his mother and another woman; that the entire party stepped upon the defendant’s track when the horses attached to the car were but a few feet distant; that the driver shouted and that both of the women' stepped back in time to avoid the accident, but that the plaintiff, who was walking between the two women, was knocked down and run over. The evidence tended to show that the driver applied the brake, pulled in his horses and did his utmost to avert the accident.
    The defendant’s negligence was predicated upon the theory that the brake with which the car was fitted was defective.
    The court charged, over the objection of the defendant, that, if the car, properly equipped, could have been stopped, after the driver saw the child in time to have prevented, the accident, the jury might find that there was negligence, on the part of the defendant, even if the person with the child was negligent; that it was a rule of law that, notwithstanding negligence on the part of the injured person he could recover, if the defendant, by care, could have -avoided the accident; that if.the driver might have stopped the car and avoided the accident, the fact that the plaintiff’s negligence or that of the person in whose care he was, contributed to the injury, would not be a bar to a recovery.
    
      Held, that, while the propositions charged may have been correct in the abstract, they were not applicable to the case at bar;
    That they tended not only to confuse, but to mislead the jury, and that they constituted prejudicial error.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of January, 1901, upon the verdict of a jury for $10,000,- and also from an order entered in said clerk’s office on the 22d day of January, 1901, denying the defendant’s motion for á new trial made -upon the minutes.
    The action was brought to redover for personal injuries sustained. by the plaintiff, a boy four and a half years of age, who was run over--, on the afternoon of August 11, 1898, by defendant’s'westbound Twenty-third street horse car at Second avenue, and as a result of the accident lost his leg.
    The plaintiff, accompanied by his mother, who was carrying a younger child, and by another woman, Miss Mick, alighted from the south side of an east-bound Twenty-third street car at the west side of Second avenue in order to transfer north, and started diagonally to the northeast corner. As they were stepping on the westbound Twenty-third street track they heard a shout and saw a horse car approaching. The women stepped back, but the plaintiff was struck by the horses, and before the car had stopped at the westerly crosswalk was run over by the front wheel on the north side of the car. It was testified by a truckman, Harrison, who was standing on the northwest corner looking across, that when he saw the boy in the middle of the track, crossing diagonally, the horses’ heads were about three feet from him and the driver was trying to stop the car. Miss Mick testified that they were walking across and went to step on the track when she heard shouting, saw the car coming and drew back, and the boy was then standing on the track, screaming, and the horses’ heads were about five or six feet away. The mother testified that the boy was walking between her and Miss Mick, and when she heard the shout and jumped back the horses’ heads were about five yards away, and then when she saw the child on the track they were four yards away ;. that the horses were not going fast and not going slow. The driver of the car, called by the plaintiff, testified that he did not see the women till he was on top of them, his horses’ heads being about five feet from them, and he did not see the boy until they had stepped back and the horses then were right on him. Further, he testified that although he had put on the brake and pulled hard the car would not stop, and the brake was worn and full of holes and of no use to a car at all, and before the accident its bad condition had'been reported; that the car, after he applied the brake, went fifteen feet; but if there had been ne defect he could have stopped within five feet. An affidavit of the driver, made just after the accident, gives substantially the same account, but makes no mention of a defective brake.
    In behalf of the defendant there was testimony that the brake was in good order when inspected a few days prior to the accident, and that no report of defect had been made, and that ordinarily the car might be stopped in twelve or fifteen feet. It was further testified by one witness that he heard a shout and turning around saw the women step back and the child run forward and get struck and he was dragged two feet. Another witness testified that the car first stopped on the east side of the avenue when the people started across.'
    In charging the jury the court said: “ The railway company * * * was bound to act under the rules of ordinary prudence. This driver says that it did not; that the brake was?defective, árid while the truckman Harrison says that he was doing all that ‘he could to stop the car, and that it happened so suddenly, and the driver himself says that he put on the brake, the driver says that because the company had furnished him with a car with a bad brake he could not stop. Now you will consider all the circumstances * * * so as to make up your minds whether he told the truth.” No exception was taken to the charge, but the plaintiff made several requests, among which the following were charged, the defendant excepting:
    “ Tenths If the car of the defendant, properly equipped, could have been stopped in time to have prevented the accident after the . driver saw the child approaching or on the track, you are authorized to find that it was negligence on the part of the defendant to have permitted the accident even if you find that the person in whose care the child was, was negligent in permitting the child to get into a position of danger. * * *
    
      " Eleventh. It is a rule of law that notwithstanding negligence upon the part of the person injured, he may recover if the railway company after such negligence occurred could by the exercise of ordinary care have discovered it in time to have avoided inflicting the injury. * * *
    “ Twelfth, If the driver might by the exercise of ordinary care have stopped the car and so have avoided the injury to the boy, neither the fact of plaintiff’s own negligence or that of his parent or the person in whose care he was (in being, on the track) contributed to the accident, constitutes a bar to plaintiff’s recovery.” :
    The jury’s . verdict was for $10,000, and from the judgment entered thereupon and from order denying motion for a new trial, the defendants appeal.
    
      Charles F. Brown, for the appellant.
    
      William H. Leonard Edwards, for the respondent.
   O’Brien, J.:

There is no evidence in this record to support a finding that the driver failed to do his utmost after knowledge that those crossing-in front of him were in danger to avert the accident. His shouting enabled the women to step back in time to avoid being struck by the horses, and his testimony, supported by that of the witness Harrison, is that he at once applied the brake and pulled in the horses. The witnesses state that the boy went upon the track but a few feet in front of the horses, and the circumstances and manner in which the accident occurred show that only a brief interval of time and space separated the existence of danger and the collision. Although the car had stopped on the other side, when the people started to the northeast corner there is nothing to show that the driver was not, as were those crossing, suddenly made aware of the danger. And, although it appears that the child was dragged two. feet, it is not shown that this was the fault of the driver. The negligence in fact was predicated upon the failure of the defendant to furnish the car with a suitable brake, and it was upon this theory that the court submitted the issue to the jury.

Not satisfied, however, with the charge to which neither side took exception, the plaintiff’s counsel urged upon the court numerous •requests to charge and introduced propositions of law which, however good in the abstract, were not applicable to the case at bar, and as will be seen would necessarily tend not only to confuse, but to actually mislead the jury. Thus the court charged at plaintiff’s request, the defendant duly excepting, that if the car properly equipped could have been stopped after the driver saw the child, there was negligence on the part of the defendant even if the person with the child was negligent. The next request went a step further and charged that “ It is a rule of law ” that notwithstanding negligence on the part of the injured person, he may recover if the company might still by care have avoided the accident. And the following request was that if the driver might have stopped the car and avoided the accident, the fact of. plaintiff’s negligence contribuí-, ing to the injury was not a bar to recovery.

A request similar to this last was charged in Goodman v. Met. St. Ry. Co. (63 App. Div. 84), and resulted in a reversal of. judgment for the plaintiff. What the counsel had in mind undoubtedly in submitting these¡ various requests were cases like Weitzman v. Nassau Elec. R. R. Co. (33 App. Div. 585); Green v. Met. St. Ry. Co. (42 id. 160), and Totarella v. N. Y. & Queens County R. Co. (53 id. 413). In the Weitzman Case (supra), which is a good illustration, a child five years of age, upon being struck by an electric street car, fell upon the fender and was carried along for a distance of from 32 to 150 feet when he rolled from the fender in front of the advancing car and was run over and killed, and it was held-that, assuming the child to have been sui juris and that his falling, upon the fender resulted from his contributory negligence, it was the duty of the railroad company when the child had reached a position upon the fender, to have prevented the injury and death of the child if it had time and could have done so by the exercise-of reasonable care. As was therein said : Whatever the degree of negligence on the part of the individual in the original contact, that negligence culminated in the accident which landed him in the net of the fender. From that moment a new relation existed between the parties and any act or omission on the part of the defendant, amounting to a lack of the care demanded by the situation and resulting in the death of plaintiff’s intestate, is sufficient to charge the company with negligence.”

In the case at bar, however, there were presented the ordinary questions of negligence and contributory negligence, and there was' no suggestion, either in the pleadings or in the testimony, of any new situation being created after the plaintiff had come into a position of danger. Neither the cases referred to, therefore, nor the rule of law invoked by the plaintiff and embodied in the requests, had any application. It had been shown that the driver, with his utmost vigilance and endeavor, could not stop the car, and the testimony would support the inference that the child, when the accident occurred, was walking between his mother and another woman, and .was well taken care of. The tendency of the two first requests and the effect of the last was to instruct the jury that, regardless of contributory negligence, there might be a recovery. Of course, if the jury had found that the parent was negligent in attempting to cross in the manner testified, such negligence, assuming the child to be non mi juris, would bar recovery, yet the jury were instructed that a recovery could be had upon proof merely that there was negligence on the part of the defendant. The last request, particularly, was, in view of the facts, erroneous and most prejudicial.

The judgment and order, accordingly, must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Yan Brunt, P. J., Patterson and Laughlin, JJ., concurred.

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

Note.— The rest of the cases of this term will be found in the next volume, 71 App. Div.— Rep.

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