
    Marx Block, an Infant, App’lt, v. The Harlem Bridge, Morrisania & Fordham R. Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 10, 1890.)
    
    Negligence—Infants—Street railroads—When a question for jury.
    Plaintiff, a boy seven years old, in response to the call of a companion» attempted to cross the street. After passing defendant’s up track he discovered that he could not cross the down track and attempted to return, when he stumbled and fell upon the up track and was run over by a car running thereon, the driver of which made no attempt to slacken speed before the accident although called to by bystanders. Held, that the questions of negligence involved were for the jury and that a dismissal of the complaint was error.
    Appeal from judgment dismissing complaint.
    This action was brought to recover for damages sustained by the plaintiff under the following circumstances.
    On the 6th day of March, 1886, between five and six o’clock in the afternoon, but whilst light enough remained to distinguish objects readily, the plaintiff, a bright, smart, intelligent boy, seven years old, ran from the southwest to the northeast corner of 130th street and Third avenue. About twenty-five or thirty seconds after reaching the latter point, being summoned by the whistle of a companion, he started to recross the street to the place whence he came. At this time a car of the defendant was coming down from Harlem bridge on the west or down town track in full sight, and another car also in full sight coming up the uptown track, the horses attached to which were supplemented by a third or hill horse driven by a second driver, the grade of the road at that point being unusually steep. The horses’ heads were then about on a level with the down town crossing and the horses were on a walk, not having yet begun to trot. The plaintiff crossed the uptown track in safety, but finding on reaching the middle of the street that he could not pass in front of the down car he turned quickly about and endeavored to recross the uptown track. But on reaching the outer rail thereof nearest the sidewalk he .stumbled and fell upon the street with his foot across the rail, .about six or eight feet in front of the horses attached to the up car, which were then trotting. A spectator standing on the northeast corner of 130th'street, observing the fall of the boy, “holered ” to the driver who, however, took no apparent notice and made no effort to stop the car. The boy strove to rise, but the horses knocked him down again and the wheels passed over him, causing injuries resulting in the amputation of the left leg and three toes of the right foot Then, and not, until then, the driver took steps to stop the car, bringing it to a standstill about four feet ahead of the place where the boy lay.
    
      J. W. Dexter, for app’lt; J.M. Scribner, for resp’t.
   Brady, J.

In the case of Stone v. Dry Dock, E. B. & B. R. R. Co., 23 N. Y. State Rep., 551, it was declared that in administering civil remedies the law does not fix any arbitrary period when an infant is deemed capable of exercising judgment and discretion, and that from the nature of the case it was impossible to prescribe a fixed period when a child becomes sui juris. Some children reached the point earlier than others. It depends upon many things, such as natural capacity, physical condition, training, habits of life and surroundings. These and other circumstances may enter into the question. It becomes therefore a question of fact for the jury where the inquiry is material unless the child is of so very tender years that the court can safely decide the fact.

The court.said in addition: “ The child was lawfully in the street and in attempting to cross he was struck by the horses on the •defendant’s car and was run over and killed. The evidence would have justified the jury in finding that when the child stepped down from the curbstone the car was fifty feet or more .away and the distance from the curbstone to the track was less than twelve feet. The child if he saw the car might very well have supposed that he could get over the track before the car passed.” And further that it would be very unjust to exact from .such a child that degree of care which an adult would exercise under such circumstances. In that case the child was seven years and three months old.

When the plaintiff in this case crossed the uptown track in safety, as we have seen he did, finding on reaching the middle of the street that he could not pass in front of the down car, he turned quickly and endeavored to recross the uptown track, and -every presumption and inference leads to the conclusion that if he had not fallen on the outer rail of the uptown track he would have crossed in safety. If there was time under ordinary circumstances, considering the ■ developed capacity for active movement on the part of the boy, to cross the track, he was not bound to make any allowance for the fall which occurred. See Mentz v. Second Ave. R. R. Co., 3 Abb. Ct. App. Dec., 274; R. R. Co. v. Gladmore, 15 Wall., 401. And the observations in Thurber v. H. B., M. & F. R. R. Co., are applicable here, namely: “ The actual result does not necessarily condemn the attempt as rash, or even negligent It may only prove an error of judgment, and in such case it is for the jury to say whether a man of ordinary prudence and discretion might not, under the same circumstances, have formed and acted upon the same judgment.” Thurber v. H. B., M. & F. R. R. Co., 60 N. Y., 326, 331.

And again: “If the character of an act, by which one exposes himself to peril, is to be judged by its result alone, a person would, in most cases, be condemned as negligent who should voluntarily place himself in a position of possible danger, and harm should come to him.”

It is quite clear from these authorities, which might be multiplied, that it would be error to decide as matter of law that the attempt of the plaintiff to cross the street was, under the circumstances, per se, negligence. If it was only an error of judgment it was the duty of the court to submit the question to the jury. It may be further observed that this case in its essential elements is kindred to the case of Fenton v. Second Ave. R. Co., decided herewith, the boy in that case being injured in consequence of falling in an attempt to cross the track under circumstances similar to those in this case.

In this case it cannot be said that the evidence does not sustain the charge of negligence on the part of the defendant The driver made no effort, as we have seen, to put on the brakes. His hand was not on the brake at the time, and although he was “hollered” at, he took no notice of the effort to attract his attention, and did nothing until the car had passed over the boy, when he was seen for the first to tighten the lines of the horses. One of the witnesses testified to hearing the hollering ” to the driver and to feeling the two bumps of the wheels as they passed over the plaintiff’s limbs. It will be remembered that it was perfectly light at this time, so that what was going on could be seen through the car windows.

The driver was seen turning the brake after the bumps, a circumstance showing the importance of the brake in stopping the car even when going on an upgrade.

It was in evidence, also, that when the driver’s hand is on the brake he can stop the car quicker than if he fail to have his hand there.

These were circumstances on that subject which required the submission of the question of the defendant’s negligence to the jury as well as that of the contributory negligence of the plaintiff.

In crowded thoroughfares of the city, of which Third avenue is decidedly one, there should be exacted from the drivers of horse cars vigilance in the avoiding of accidents. They should be required to be on the alert constantly in order that citizens who have the right to cross wherever they please, exercising a reasonable degree of care, may not be injured by their inattention.

It is true these cars are conveniences of much value to our citizens. But it is absurd to suppose it to be impossible so to regulate the use of them as to afford at least immunity from danger to the wayfarer who is in the exercise of his lawful right of travel on' foot.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Yan Brunt, P. J., and Daniels, J., concur.  