
    Thomas F. Dowd, as Administrator, etc., App’lt, v. Brooklyn Heights Railroad Company, Resp’t.
    
      (Brooklyn City Court, General Term,
    
    
      Filed June 25, 1894.)
    
    BTeuligence—Question of fact.
    The evidence, in this case, was held to make a prima facie case of negligence and want of contributory negligence, which should have been submitted to the jury.
    Appeal from a judgment of nonsuit.
    
      Tredwell & Catlin, for app’lt; Morris & Whitehouse, for resp’t.
   Van Wyck, J.

—This is an appeal from a judgment of nonsuit. This action was brought to recover damages for the death of plaintiff's child, who, it is alleged, was killed, at the age of eight years, through the negligence of the motorman of one of defendant’s trolley cars. The motion to dismiss the complaint was made when the plaintiff rested his case, upon the grounds that defendant was not negligent and deceased was negligent. Was it error to grant this motion ? we are called upon to answer.

There is evidence which the jury was justified in believing, and from which it can be fairly inferred, tbpt on July 23,1893, Charles Dowd, an eight year old boy, was on the east side of Court street, Brooklyn, standing 11 feet from the down track, when he started to run directly towards this track to cross same, at which instant the down car was 50 feet from the point on this track at which he was about to cross, coming towards him at the “usual pretty fast” speed of the trolleys, which was not slackened till the ear struck and killed the boy, when he had almost passed safely over, for with another step of about two feet he would have cleared the track; that the motorman, though it was bright daylight, with nothing to obstruct his view, did not see the boy, and did not even look forward, but constantly kept his eyes turned in another direction during the whole time the ear was passing over a space of 50 feet or more in its approach to the point of collision ; that the motorman’s failure to see the boy and to slacken or stop his car till the collision, when he stopped it in about 10 feet, was through(liis inattention to what was in front of him and near his track; that his mind was so riveted upon something else than his duties, or so wandering, with no thought of his surroundings, that he did not apparently pay any attention to the conditions in his front, and failed to recognize or respond to the usual signal with the uplifted hand to stop for a passenger, given by the witness Blnmson. Negligence is a failure to exercise that degree of care which persons of ordinary experience and prudence would or ought to exercise under similar circumstances. Ordinary care exacts greater or less alertness according to the dangers which the exigencies of the surroundings would demand from persons of ordinary experience and prudence. Certainly the diligence of a motorman propelling a car along a country road seldom frequented by children or adults would be slight compared with that of a motorman driving his car through the crowded streets of a large city, with the usual percentage of children who constantly cross the roadways from sidewalk to sidewalk while going to and from school, church, on errands for parents, or recreating in play. Such use of the streets by children is not wrongful, and it is not, per se, negligence for a parent to permit even a non sui juris child to play upon the street. Kunz v. City of Troy, 104 N.Y. 344; 5 St. Rep. 642 ; McGuire v. Spence, 91 N. Y. 303. This child, Charles Dowd, was between eight and nine years old, and had been going to school several years, and was passed of the usual brightness of a child of that age. Assuming him to have been sui juris, still he must be judged according to his maturity, for the law but expressed the judgment of the common sense of the people when it declared that greater circumspection will not be exacted of a child than that which his tender years afford. It would be an invasion of this most reasonable rule to hold, as a question of law, that this child was negligent, when he, standing near the track, and seeing a car 50 feet away, followed perhaps the dictates of his best judgment in believing that he could with all safety easily cross over before it reached him. Maybe his want of maturity led him to misjudge the relative rapidity of his own and the car’s speed. We are satisfied that the question of contributory negligence, assuming the child to have been sui juris, was for the jury, and not for the court. McGovern v. N. Y. C. & H. R. Railroad Co., 67 N. Y. 418. See Id. 421; Moebus v. Hermann, 108 N. 349; 13 St. Rep. 648; Kunz v. City of Troy, 104 N. Y. 344, 351; 5 St. Rep. 642.

The court of appeals has often declared, in one form or another, that drivers of vehicles must appreciate the fact that foot travelers frequently cross the streets and that this devolves upon them the duty of being watchful, and looking out for such travelers for the purpose of avoiding a collision. Murphy v. Orr, 96 N. Y. 14, 16; Moebus v. Hermann, 108 N. Y. 353; 13 St. Rep. 648. The testimony in this case would sustain a finding, which would be the most charitable view of it, that the motorman, through inattention, was neither watchful nor careful in his outlook for foot travelers on this occasion, and that, if he had been, he would have discovered the dangerous position of the deceased boy in time to have saved him from injury by stopping or slowing up the car, and, on the other hand, if lie did see the boy within a few feet of the track, running directly towards it to cross the same, a finding that he should have anticipated the child’s dangerous position and could have avoided the collision by reasonable care in cutting off his power and applying his brake, and that he failed to do so. There was a prima facie case on defendant’s negligence which should have been submitted to the jury. Stone v. Dry Dock Railroad Co., 115 N. Y. 104 ; 23 St. Rep. 551; Mason v. Atl. Av. Railroad Co., 4 Misc. Rep. 291; 54 St. Rep. 454; affirmed, 140 N.Y. 657; 55 St. Rep. 931; Thurber v. H. B., M. & F. Railroad Co., 60 N. Y. 326, 329; Moebus v. Hermann, 108 N. Y. 349 ; 13 St. Rep. 648; Murphy v. Orr, 96 N. Y. 14; Keenan v. Railroad Co., 60 St. Rep. 831; 29 N. Y. Supp. 325.

The judgment and order herein must be reversed, and new trial ordered, with costs to abide the event  