
    JAMES PENDRIL, by His Guardian, &c., Plaintiff and Appellant, v. THE SECOND AVENUE RAILROAD COMPANY, Defendant and Respondent.
    It is undoubtedly true, that on the trial of an action brought to recover damages caused by the negligence of the defendant, that the negligence of the plaintiff may so clearly appear (as contribuí- ' ing to the accident) that it would become the duty of the judge to dismiss the complaint.
    But where the evidence discloses facts and circumstances which would cause a fáir difference of opinion and judgment whether or not the plaintiff was guilty of any negligence, it is the right of the plaintiff to have the question of negligence submitted to the jury.
    
      Held, that the facts in this case (see the statement and.opinion) should have been submitted to the jury, and the question of -negligence considered and decided by them.
    Before McCunn, Curtis and Sedgwick, JJ.
    
      Decided May 13, 1872.
    This action comes before the court on an appeal by the plaintiff from a judgment entered upon an order dismissing the complaint, and also from an order denying plaintiff’s motion for a new trial. The plaintiff sues to recover damages for alleged negligence on the part of the defendants in driving one of their cars over him, and cutting off his right arm. The defendants deny negligence on their part, and set up that the injuries were occasioned by the negligence of the plaintiff.
    It appeared, on the trial, that the plaintiff, a boy of five years of age, with a large boy, about twelve, who held him by the hand, attempted to cross the Second avenue, at the upper Twenty-eighth street crossing. The boys passed over defendants’ westerly track, and had passed so far over their easterly track that the large boy was clear of the horses of defendants’ car, which was being driven up the avenue, but the small boy, the plaintiff, was thrown down by the off horse, and run over by the car wheel, and was lying, when the car was stopped, between the wheels on the easterly rail of the track, with his arm so nearly severed at the shoulder that it had to be amputated.
    The evidence shows that the boys were on the westerly track, and crossing over towards the easterly track upon the crossing, when the car was about ninety or one hundred feet from them. That the car was driven “very rapidly,” “the horses were on a fast gaitthe witness wa,s “ not positive whether they were running or trotting.” It appears that the rate of speed was such that it was unsafe for the witness to get on or off, at the time. The grade was ascending, up which the car was coming with. very few passengers in it. The driver was on the front platform, standing with his back against the front, of the car or window. The reins were slack, and he held them in both hands, shaking them.
    It was about noon, a clear day, and the plaintiff conspicuously dressed. The pole of the car was ten feet in length, and the car twenty-two feet, making thirty-two feet in length, and from the testimony, considering the grade and the load, could have been stopped in from sixteen to twenty-two feet.
    
      Lewis Johnston, attorney for appellant.
    
      Albert Matthews, of counsel.
    
      John H. Platt, attorney for respondent.
    
      John Slosson, of counsel.
   By tot Court.—Curtis, J.

The appellants claimed, upon the argument, that it was a matter of right to have the issue of negligence submitted to the jury, where it depends on “inferences to be derived from a variety of circumstances, in regard to which there is room for a fair difference of opinion between intelligent and upright men.” That all the circumstances of this case should have been submitted to the jury, so that they might have determined how far such circumstances tended to establish the assumed fact of negligence on the part of the plaintiff, and that plaintiff’s extreme youth obligated defendants to use extra care and caution to avoid inflicting injury.

On the part of the respondents, it was claimed, that there was no negligence on the part of the defendants, but on the contrary, that the evidence tended to show that the driver of the car used great diligence to prevent the accident, and .that the negligence of the plaintiff is self-evident.

The question arises whether this is a case that should have been left to the jury. It is undoubtedly true, that when the negligence of the plaintiff is clearly shown, there may be occasions when it becomes the duty of the judge to dismiss the complaint. But it does not appear that this is a case of that character. The evidence shows that the car was being driven at an unusual and rapid rate of speed up an ascending grade; that the driver was leaning back on the front platform, shaking his loose reins. It was noon, his view was unobstructed, and when he stopped the car the front wheel had passed over the plaintiff. As the plaintiff approached the track, passing over the westerly track first, the car was ninety or one hundred feet off. It could have been stopped in from sixteen to twenty-two feet. A careful driver, with proper control of reins and brake, could have avoided the collision. With reins held taut, the driver could have sheared the horses off the track and prevented the knocking down, by the off horse, of the plaintiff, as he passed over the easterly rail of the track. • A proper control and nse of the brake could have certainly stopped the car a fraction of a second sooner, which would have prevented the wheel ! passing over the plaintiff. It looks as if the driver did not get himself in a position to stop the car until the horse was upon the plaintiff, and then it was too late to arrest its motion by some five or six feet, so as to save plaintiff from the wheel. An adult might be deceived in the rate of approach and speed of a street car driven very and unusually rapidly; and last of all at such a time should the driver be, as the witness testifies, “ carelessly in front of the car, the lines in both hands shaking them,” apparently urging his horses to a still higher rate of speed. His duty was to have the reins and brake in his control, and to drive in a careful and usual manner. It is impossible to conceive that a man, put in so responsible a position by the defendants, would wantonly drive over a child, but it looks very much as though he was driving in an inconsiderate and negligent manner.

The negligence, if any, of the plaintiff, crossing the avenue, led by the hand of another child of maturer years, under these circumstances, is not so apparent as the respondents claim. On the contrary, it seems dfficult to see wherein it consists. An adult, acting with reasonable prudence, might be deceived by unusual and careless driving, and run over in consequence of it. It would be a retrograde movement in civilization to establish a rule that those who obtain the privilege of running horse cars on railways, through the streets of a crowded city, can run them without some observance of care and protection towards those whom old age, infirmity or tender years, commend to universal consideration and care.

The theory that the cars in such case would be a longer time in making their trips, and that children should be kept in the house or under the care of some suitable protector when they go in the streets, has no controlling force. The idea of feudality, that the footman must keep out of the way of the horseman, has given place, in the most enlightened and cultivated cities of the world, to a careful and practical consideration for the pedestrian, increasing in proportion to personal incapacity. The concession of privileges to increase means of communication through the streets of a city does not, even by implication, waive any privilege of personal safety to the citizen and his household. Their rights and welfare are not relinquished to favor any increase of speed. The child has its rights; one is to be educated by the State, which provides instruction. At certain hours of the day, the streets and avenues traversed by horse railways, are thronged, and crossed necessarily by many tens of thousands'of children on their way to, or from, places of instruction, profiting by this public provision and invitation extended to them. To have an adult custodian with any considerable number of them would be impossible. To keep them at home would conflict with the best interests and the established system of the State, and be a denial of the rights of the child.

Judge Mason, in Mangam v. Brooklyn R. R. Co., 38 N. Y., 461, defining the rights of children of tender years, says : They are not beyond the pale of the law when in the streets ; common humanity is alive to their protection, and the law both in reason and justice, and out of compassion to their weakness and inability to protect themselves, should throw a broader shield of protection around them against injuries from the careless conduct of the strong than it affords to an adult, who is capable of self-defense and protection.”

Judge G-boveb, in the same case, considers “ that a somewhat different rule, in determining the case to be exercised, is to be applied to infants, than is applicable to adults, where the inquiry is whether their negligence has contributed to an injury received.” In the case of O’Mara v. The Hudson R. R. Co., 38 N Y. 449, the same views are sustained, and Chief Justice Hunt affirms that the young “ cannot be required to exercise as great foresight and vigilance as those of maturer years.” This, an engineer is bound to know, and if the child is within his view, to act accordingly.” These observations apply with great force to the case under consideration. There is not shown in it that _ negligence on the part of the plaintiff, that sustains a departure from the general rule, that the question of the contributory negligence of the party injured should be left' to the jury. (It may be regarded as now in accordance with the uniform tenor of the recent English cases and those in our courts, that the general questions of negligence of the defendants, and the contributory negligence of the plaintiff, are exclusively within the province of the jury (Lunt v. Railway Co., 1 Law Rep. Q. B. 277; Belbee v. Railway Co., 18 Com. B. N. S. 584; Stupley v. Railway Co., 1 Law Rep. Ex. 21 ; Stubley v. Same, Id. 13; Hogan v. Eighth Ave. R. R. Co., 15 N. Y. 383; Ernst v. Hudson R. R. Co., 35 N. Y. 38 ; McGrath v. Same, 32 Barb. 147; Maloy v. N. Y. Cent. R. R. Co., 58 Barb. 184 ; Mulhado v. Brooklyn C. R. R. Co., 30 N. Y. 373 ; Brown v. N. Y. Central R. R. Co., 34 N. Y., 404 ; Creed v. Hartman, 29 N. Y. 592; Keller v. Same, 24 How. Pr. 177 ; Mentz v. Second Avenue R. R. Co., 2 Robertson, 357; and affirmed in court of appeals, Albany Law J. vol 1, p. 99.

In view of what may be considered the settled law in respect to these questions, this case should have gone to the jury.

The judgment and order appealed from should be set aside and a new trial ordered.  