
    Anna Almira Foley, as Administratrix of Harold Foley, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    May 5, 1909.
    Railroad—negligence — death, of hoy—contributory negligence.
    Evidence in an action to recover for the death of a boy eight years old, who was killed by a train-at a crossing on the defendant’s road while riding with the driver in an empty coal wagon, examined and held, to sustain a verdict for the plaintiff, though the driver was negligent.
    McLennan, P. J., and Spring, J., dissented.
    Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 13th day of October, 1908, Upon :the verdict of a jury for $1,100, and also from an order entered in said clerk’s office on the 19th day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles T. Titus, for the appellant.
    
      Willard A. Rill, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

Deceased was a boy eight years and eight months of age, and the verdict was moderate, $1,100. He was riding with one Gardner in an empty coal wagon, both standing up near the front, and there was only one horse attached to the wagon. It was in the daytime, and they were crossing a branch track of defendant’s road, along a right of way, when an engine backing along the branch struck the wagon, and the boy was thrown out, run over and killed. Gardner escaped injury.

First. There was some controversy on tlie trial as to whether the road along which they were driving was merely a private way or was such a public thoroughfare as to require the defendant to give travelers along the same reasonable notice of the approach of its engine and cars. This question was submitted to the jury as one of fact, and the finding in plaintiff’s favor with reference' thereto should not be disturbed by this court.

In view of this finding the jury were justified in finding further from the evidence that the defendant was negligent in failing to give reasonable and proper notice of the approach of the engine to the crossing over the right of way at the time of the accident.

Second. More serious questions arise as to contributory negligence.

There was nothing to prevent Gardner and the boy from seeing the approach of the engine before they started to cross the track. It is quite apparent that they were talking together, gave no attention to the crossing and did not look or listen for any engine or cars, and did not know one was approaching until they were on the track and it was too late to avoid a collision. If this action were by Gardner for any injuries he may have received he could not recover because of his contributory negligénce. How about the boy for whose death a recovery has been had? We assume that the jury found that Gardner, and not the boy, was driving; that the man, and not the boy, had the charge and control of the horse and wagon. The boy was not responsible for the conduct of Gardner, and the negligence of the latter could not be imputed to him or defeat a recovery herein. (Robinson v. Met. St. R. Co., 91 App. Div. 158, and cases referred to there; affd., 179 N. Y. 593.)

In the. case cited the boy injured was nine years old and was riding upon the seat of a truck with the driver when they were struck by a street car. The driver was negligent. The boy said nothing to the driver, did not call his attention to the car, and made no effort to jump off to avoid injury. The court held not only that the negligence of the driver was not imputable to the boy, but that the boy himself was not guilty of contributory negligence as matter of law; that it was a question for the jury, saying: “ He was only nine years .of age ; and the standard forjudging his conduct is not the care that would be exercised by an adult, but only that of one of his age of average intelligence and ordinary prudence.” (See, also; Sherwood v. N. Y. C. & H. R. R. R. Co., 120 App. Div. 639, Noakes v. N. Y. C. & H. R. R. R. Co., 121 id. 716; Costello v. Third Ave. R. R. Co., 161 N. Y. 317, and cases therein referred to ; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id. 199; Simkoff v. Lehigh Valley R. R. Co., 190 id. 256.)

The court submitted -to the jury the question as to whether the boy was súi juris. If they found he was so, then the foregoing principles and cases support the recovery had here. If he was not, then the boy having been allowed by his mother to ride in this wagon with a driver, her negligence was for the jury and she could not be held guilty as a matter of law. (See Simkoff v. Lehigh Valley R. R. Co., supra.)

The verdict involved the finding of the absence of contributory nógligence on the part of both the boy and his mother. Such finding should not be disturbed by this court.

Bobson, J., concurred; 'Kruse, J., concurred in result in a memorandum; McLennan, P. J., and Spring, J., dissented.

Kruse, J. (concurring);

I concur in the result. I think, however, that the bpy was guilty of contributory negligence as a matter of law, if he was sui juris. But whether he was a boy more alert and intelligent than a boy of his age usually is, so'as to make him capable of exercising a degree of care required of a person who is sui juris, is a question of fact. Counsel for the defendant seems to stand upon the broad proposition that there was no legal liability against the defendant, and does not ask to have the case reversed upon any mere technical objection, very likely fearing the result of another trial, as the verdict seems to be very moderate.

I, therefore, concur in affirmance.

Judgment and order affirmed, with costs..  