
    Michael Flynn, as Administrator, etc., of James Flynn, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence — duty of a cmr driver as to both turning the horses and applying the brake at the same time, where a child goes on the track a few feet in front of his cm\
    
    In an action predicated upon the defendant’s negligence, it appeared that while the plaintiff’s intestate, a child between seven and eight years of age, was attempting to cross Tenth avenue at Fortieth street, in the city of New York, from east to west, at or near the north crosswalk, a belt line car going south passed in front of him; that a car belonging to the defendant was following down the avenue about twenty feet behind the belt line car, and that west of the belt line car, and only four or five feet from the tracks, a cart was being driven up the avenue towards the north. After the belt line car had passed, the boy went on the track a few feet in front of the horses of the defendant’s car, which was going at the rate of about six miles an hour. The driver of the car, fearing that the horses would strike the boy, swung them to the left, but did not at the same time put on the brake, and the dashboard of the west side of the car struck the boy and threw him in front of the cart, which passed over his body and killed him.
    
      
      Held, that the complaint was properly dismissed;
    That, while the question as to the contributory negligence of the plaintiff’s intestate might properly have been submitted to the jury, there was no such evidence of negligence on the part of the defendant as required the submission of that question to the jury;
    That the primary and immediate danger was that the horses would strike the boy, and that the driver properly gave his undivided attention to averting that danger, and was not negligent because, in the midst of the excitement, he failed to perceive the posibility of a later danger, and to provide against it, by putting on the brake at the same time that he swerved the horses;
    That, at the most, the driver was only guilty of an error of judgment.
    Williams and O’Brien, JJ., dissented.
    Appeal by the plaintiff, Michael Flynn, as administrator, etc., of James Flynn, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of May, 1896, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of New York.
    The action is for damages resulting from the death of James Flynn, a child between seven and eight years of age. The child was bright and intelligent. He was sent from his home on the Slst of May, 1895, on an errand which required him to go to a store on the east side of Tenth avenue between Fortieth and Forty-first streets. Returning from his errand the boy attempted to cross Tenth avenue from east to west at Fortieth street, and at or near the north crosswalk. A belt line car going south passed in front of him. One of the defendant’s cars (a green car) was following on down the avenue about twenty feet behind the belt line car. On the other side of the belt line car, and four or five feet west of the railroad track, was a cart loaded with stone, which was being driven up the avenue towards the north. The boy went on the track (in his effort to cross) behind the belt line car and a few feet in front of the horses of the defendant’s car. He was going quickly. The driver of the car swung his horses to the left and thus avoided a collision between the boy and the horses. But the dashboard of the car — the side of the car nearest the west side of the avenue — struck the boy and knocked him down. He fell in front of the neighboring cart which passed over his body and killed him. The driver of the car had one hand upon the brake, when, with the other he was swinging his horses to the left, hut he did not at the same instant turn the brake or stop the car. lie devoted himself at the moment exclusively to turning the horses to the left, and this was necessary to save the child from being struck by the horses. The complaint • was dismissed, and the plaintiff appeals.
    
      Frederick H. Man, for the appellant.
    
      Brownson Ker and John T. Tuttle, Jr., for the respondent.
   Babbett, J.:

The question in this case is whether the driver of the car was guilty of negligence; that is, whether there was anything to go to the jury on that head. Upon the question of contributory negligence, we think the case might have gone to the jury. It cannot be said, as matter of law, that the child failed to exercise that degree of care which might reasonably have been expected of him.

As to the main question, to wit, the driver’s alleged negligence,, the claim is that he made no effort to stop the car; that while he was turning his horses to the left with one hand he did not at the same time apply the brake with the other hand. It is clear that if the driver had applied the brake and had not turned his horses to one side, the child would have been run over. The situation was critical and the danger imminent. The horses were almost upon the child. There was the primary and immediate danger. What the situation imperatively demanded was that the driver should lend his energies to the swerving of the horses. He met that claim upon him with promptness and vigor. But it is said that he should have done more; that in the midst of the excitement, and on the spur of the moment, he should have perceived the possibility of a later danger and provided against it. There was no evidence tending to show that a driver, under such circumstances, could swerve his horses swiftly with one hand and at the same moment adequately apply the brake with the other. Assuming, however, that the jury might have inferred that this was feasible, still the appellant’s contention would extend the rule of negligence into impossible channels. What was required of the driver was the reasonable care and diligence of a person endowed with ordinary capacity and fairly equipped for the particular service in question. What the appellant calls for is not ordinary care and prudence, but extraordinary capacity and foresight. The driver should, in this view, possess a mind capable of thinking coolly and deliberately yet promptly in the midst of excitement and danger. And this great and unusual power should be coupled with the physical capacity to perform simultaneously two distinct functions — each of which but for this capacity might well require the use of both hands. What is that but saying that unless a man possesses the highest attributes of mind and body, and exercises these attributes in the highest degree, a jury is authorized to find him guilty of negligence. We cannot concur in this extreme view. Negligence could not have been justly inferred from the conceded facts of this case. The utmost that could have been inferred was an error of judgment, namely, the possibility that the child might have been saved by the union of thought and action upon the double function. The rule is that where there is so little evidence of negligence that no reasonable man could find from it the fact of negligence a non-suit should be directed. “ Negligence,” as was said in Sutton v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 243), “ is ordinarily a question for the jury, but only when the facts would authorize a jury to infer it.”

We think negligence could not here have been inferred from the failure to apply the brake instantaneously with the performance of the primary and imminent duty. That duty was at all hazards to swerve the horses and save the child. The imminence of the immediate danger from the horses overshadowed all else. It was concentration upon the one crucial object which constituted care and prudence. The danger lay in diversion or deviation.

It is said, however, that the jury might have found that the driver could have applied the brake and slowed down before the horses’ heads came so near the boy; and that if this had been done the accident might have been avoided with or without the sudden swerving of the horses’ heads. The difficulty with this position is that there was not a particle of evidence upon which the jury could have made such a finding or from which they could draw such an inference. Indeed, there was but one witness — Thomas Gr. Kennedy — who said that the boy was as much as six feet in front of the horses when he went upon the west track; and that witness merely “ guessed ” at the distance. This is his testimony : “ I guess the car was about six or eight feet from him at the time he started to cross; the horses were going at the usual gait; something like six miles an hour.

“ Q. And with the horses going at the usual gait, six miles an hour, this boy starts in six or eight feet in front to cross over, and the driver, to prevent the horses from running him down, had to swerve them to one side ? A. To one side. The side of the ear nearest the west side of the avenue hit him.”

All the other witnesses called by the plaintiff put the distance at but between two and three feet. Mary McAuliffe says : “ I would put it about two or three feet in front. It was so near that the dri/oer had to swerve the horses’ heads so that they would not hit him.”

William J". Hickey says it was about the width of the car’s platform, which the foreman of the jury said was a couple of inches, over two feet. Hickey then testified as follows: “ The boy goes in front of the horses about two feet two inches from them heads, although this stone cart is coming along on the opposite side, right close to the track, pretty close to the track. Q. And the horses miss him because the driver swerves to the east, but the dashboard strikes him and knocks him down under the cart ? A. Yes, sir.”

The last witness of all, Thomas Tregoning, made this still clearer. He testified as follows: “ The boy went so near in front of the horses’ heads that the driver, to prevent the horses’ heads from hitting him, had to swerve the horses to the east, and that brought him away from the brake which is on the right — on the west. Q. So that he couldn’t attend to both at the same time, and he took the horses instead of the brake as the quickest way to prevent the accident — that is the way it looked, didn’t it? A. Yes, sir.”

This was substantially all the testimony upon the subject. Surely from that testimony no jury could possibly have found or inferred that the use of the brake alone might have saved the boy. This testimony also accentuates the extreme difficulty of the situation, and shows most conclusively that the swerving of the horses was the urgent requirement of the moment. The driver’s act in doing what he did must indeed have been almost involuntary. It was the one thing which any driver possessed of the least presence of mind would have done. Had the driver attempted to do more and failed, there would have been greater plausibility in attributing such failure to his negligence than there is in the present charge. For then it might with some show of reason be asserted that with the child almost under his horses’ heads, the driver should have concentrated his efforts upon the one function which the imminence of the danger called into immediate and exclusive play.

We think, therefore, that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concurred ; O’Brien and Williams, JJ., dissented.

Williams, J. (dissenting):

The action was brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The order dismissing the complaint was made at the close of the plaintiff’s evidence, no evidence having been given on the part of the defendant. In passing upon the correctness of this order, we are required to give the plaintiff the benefit of the most favorable findings of fact, which the jury would have been justified in making from the evidence. Having this rule in view, the facts were as follows : The deceased was a bright, intelligent

boy, seven years and eight months old, and lived with his parents on Fortieth street, west of Tenth avenue, New York city. He was sent by his mother, at four-forty-five p. m., on an errand, which required him to go to a store on the east side of Tenth avenue,between Fortieth and Forty-first streets. After doing the errand the boy started to return to his home. There were two street car tracks lying substantially in the center of Tenth avenue. The boy attempted to cross Tenth avenue from east to west, near the northerly crosswalk, at Fortieth street. The pavement on the easterly side of the tracks in Tenth avenue was torn up and being repaired, so that teams were obliged to pass along the avenue on the westerly side of the tracks. As the boy approached the tracks a belt line car (so called) was passing along towards the south on the westerly track, and about twenty feet behind it was the defendant’s car, also going south on the same track. On the westerly side of the belt line car, and four or five feet from it, was a cart loaded with stone, which was being driven northerly along Tenth avenue. The boy crossed the easterly track, and went upon the westerly track behind the belt line car, and about six feet in front of the horses drawing the defendant’s car. He. was walking quickly, but not running. The car was going about six miles an hour. The driver had the lines in one hand and his other hand on the brake. He did not apply the brake or slow down the car at all, but swung his horses towards the east to avoid their striking the boy. The car passed along and the dashboard struck the boy, who was then just at the west side of the track, and threw him to the ground under the cart loaded with stone, which was then near by, and before the boy could get away the wheel of the cart passed over him causing his death.

Upon these facts, there would seem to be no doubt but that the questions of the negligence of the defendant and the absence of contributory negligence of the deceased were for the jury and not for the court. The boy was clearly of sufficient age and intelligence to be chargeable ,with his own negligence, but he was a boy of tender years and not a mature man. It is well settled that a boy of his age would not be chargeable with the same degree of care as a mature man would be (Stone v. Dry Dock, etc., R. R. Co., 115 N. Y. 104), and we think the age of the boy must' also be considered in determining the degree of care which, if exercised by the driver of the car, would relieve the defendant from the charge of negligence. It was the duty of the driver to exercise such degree of care as was commensurate with the danger to be apprehended, and clearly more danger was to be apprehended by reason of the tender age of the boy than if he had been a mature man. The jury would have been justified in finding that the driver was negligent, under the circumstances, in not applying the brake and slowing down the car; that he saw the boy and was in a position to see all the danger surrounding him, and especially the presence of the cart loaded with stone, moving northerly, and before it passed the belt line car, so as to be visible to the boy ; that these dangers were visible to him in time to have enabled him to apply the brake, slow down his car, and so avoid any accident; that it was his duty to do this; that he could do it; that he neglected to do it, and was, therefore, guilty of negligence.

The jury would have been justified in finding that the boy was free from contributory negligence in attempting to cross the avenue and the tracks of the street railroad at the time and place he did; that when he started to cross the tracks there was apparently a clear way and a reasonable opportunity to cross safely, at least in the judgment of a boy of his tender years; that there was an open space of twenty feet between the two cars, and that the cart loaded with stone was hidden from his view behind the belt line car; that when he was part way across the track his passage was cut off by the loaded cart, and though he had actually crossed over the west track in front of the horses, that he believed dt better to stop and let the cart pass than attempt to go farther and risk the danger of passing in front of the cart; that he was in a place of danger and did the best he could, under the circumstances, to avoid injury; that he was so in danger by reason of the negligence of the driver in not applying the brake and slowing down the car, and that, under all the circumstances surrounding him, he exercised as much care and caution to avoid accident and injury as a reasonably careful and prudent person of his tender years would have done, and if the jury found this, then they might well find that he was free from contributory negligence.

It is well settled that the rules as to the respective duties of foot passengers and street railroad companies, as to the crossing of the tracks, are different from the rules applicable to travelers in the highway and companies owning steam railroads crossing such highways. In the case of steam railroads the travelers along the highway must, when they see a train approaching, wait for the train to pass before attempting to cross over, but in the case of street railroads foot passengers may cross over, though they see cars coming. They must exercise care in so doing, and the street car driver must exercise care also. Each must exercise such care as the circumstances of the particular case require, and the want of proper care on the part of either is ordinarily a question of fact for the jury, in view of all the circumstances surrounding them. The jury are to consider the evidence, and to draw the inferences therefrom, and their judgment, and not that of the court, is to be taken as to the question of negligence and contributory negligence.

There are cases in which the evidence is such that no inference can be drawn by the jury other than that in a single direction, and then the court may and should take the case from the jury, and itself determine the facts and direct the verdict and judgment. This, we think, was not such a case. The questions of fact here were for the jury, and the case was improperly taken from their consideration.

It is said that it was impossible for the driver of the car, after he saw the boy crossing the tracks, to apply the brake and slow down the car, and at the same time turn his horses’ heads so as to prevent the horses from striking the boy. This was a question of fact for the. jury and not for the court. He held the lines in one hand and the other hand was upon the brake. He saw or could have seen the boy when he started to cross the west track. The boy was then six feet from tire horses’ heads. He might have acted at once, using one hand in turning the horses, and the other in applying the brake Certainly it was for the jury to determine whether he could or not. The driver was not himself sworn. He did not testify that he could not do this. Until he had spoken upon the subject, the court could not say as a matter of law that he could not do this. It was at most a matter of inference to be drawn from the circumstances, and the jury, and not the court, were to draw the inference the one way or the other. It is said that some of the witnesses gave their opinions on the subject. Their evidence was in answer to questions formulated by the defendant’s counsel, he putting the words in their mouths, but at all events their opinions were not conclusive; the conclusion was to be drawn by the jury, and the evidence of the opinions of witnesses could at most aid the jury, and did not conclude them as to the determination at which they should arrive.

The driver might well have refused to say, when sworn, that he could not have turned the horses’ heads and operated the brake at the same time. Hntil he had been heard on the subject certainly the question was not one which the court could take from the jury and itself determine.

Again, it is said the driver was called upon to act suddenly, and used his best judgment under the exigencies of the occasion, and was not guilty of negligence for an error in judgment as to which was the best course to adopt. But the court had no power to determine that his action was merely an error in judgment when called upon to act in an emergency. He saw, or should have seen, the hoy when six feet in front oi the horses, that is, at the moment when he went upon the west track. Before the boy had fully passed over the track the horses’ heads had come so close to him that it was necessary to turn their heads to avoid striking him. The jury might find that due care on the driver’s part required him to apply the brake and slow down the car as soon as he saw the boy was stepping upon the track. How could the court say that the driver could not have done this before the horses’ heads came so near to the boy % Certainly until the driver had been sworn and testified that he did not see the boy until his horses’ heads were near him, until he asserted that his action was in accordance with his best judgment under the circumstances, the court could not take the question of inference from the jury and say that the driver’s failure to apply the brake was an error in judgment under the sudden exigencies of the occasion, and was not the result of his voluntary failure to apply the brake and slow down the car. In any view of the case, the question of the defendant’s negligence was one of fact for the jury, and not of law for the court.

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

O’Brien, J., concurred.

Judgment affirmed, with costs.  