
    William Robinson, by Bridget Robinson, his Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — collision between a truck anda street car — injury to a boy riding with the driver on the former— the driver’s negligence not imputed to the boy—failure to call ths driver’s attention orto jump, not contributory negligence — care required of a boy nine years of age.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, a boy nine years of age, in consequence of a collision between one. of the defendant’s street cars and a truck, on the seat of which the plaintiff was riding by permission of the driver, it appeared that the collision occurred at a street intersection between eight and nine o:clock in the evening. The car and truck were both proceeding rapidly at the time the collision occurred and no attempt was made tó stop either of them until after the accident. -The fear end of the wagon was stfuck! The driver was in a position to observe the car, but it did not appeaf whether he looked or discovered its approach, nor did it appear that the plaintiff attempted to draw his attention to the car.
    
      Held, that a judgment entered on a verdict in favor of the plaintiff should be affirmed;
    That the negligence of ,the driver, if any, could not be imputed to the plaintiff;
    That it could not be said that the plaintiff was guilty of contributory negligence, as. a matter of law, because he did not draw the attention of the driver to the car or attempt to jump from his seat, particularly as there was evidence tending to show that the truck reached the track in time to pass in safety if the motorman had the car under control;
    That the plaintiff was not required to use the care required of an adult, but only that which one of his age, of average intelligence and ordinary prudence, would be expected to exercise.
    Ingraham, Jr, dissented.
    
      Appeal by tlie defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1902, upon the verdict of a jury- for $1,500, and also from an order entered in said clerk’s office on the 8th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Anes, for the appellant.
    
      Edward A. Alexander, for the respondent.
   Laughlin, J. :

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. Between eight and nine o’clock in the evening on the 20th day of November, 1901, a south-bound car of the defendant on Second avenue collided with a vehicle passing westerly on Thirty-second street across the track upon which plaintiff was riding, precipitating him to the street, and inflicting the injuries of which he complains. The vehicle was a double dumping truck belonging to the firm of Holbrook, Cabot & Daly and the driver was in their employ. A short time before the accident the plaintiff and other boys were playing in the vicinity of Thirtieth street and Third avenue, and, observing the loaded truck passing easterly on Thirtieth street to the dumping ground at the East river, they asked the driver for a ride. He stopped and let two of the boys on and informed the others that if they would follow they might ride when he unloaded the truck. Pursuant to this suggestion the -plaintiff and others followed and when the truck was unloaded the driver permitted them to get' aboard, and the plaintiff climbed onto the seat in front to the driver’s right. The truck then proceeded back through Thirtieth street, up First avenue and over Thirty-second street with the horses on a trot. Evidence was given On the part of the plaintiff tending to show that when the horses were passing the easterly curb line of Second avenue the car had reached a point about one- hundred feet north of the northerly crosswalk or in the middle of the block and its speed is variously described as “ fast,” “ rapidly ” and “ very rapidly.” The driver was in a position to observe the car; but there is no direct evidence as to whether he looked or discovered its approach. The evidence indicates that at this time he was in the act of urging his horses with the lines. The evidence is ample to justify a finding on the part of the jury that the truck continued on at the same or increased speed; and that the car continued with unabated speed, the motorman making no effort to stop, and struck the rear end of the wagon after' the horses and forward end of the wagon had passed over the track. The crash of the collision was so loud that it was heard by a person in the corner drug store over twenty féet from the front of the store and witnesses say that the force of the collision threw the truck over against the elevated pillar in the middle of the street to the west of the track. Evidence was given on the part of the defendant tending to show that the horses, were proceeding very rapidly and on a gallop. We are not concerned with the question whether the driver of the truck was negligent for it does not appear that the plaintiff was in . any manner responsible for the conduct of the driver and the negligence of the latter could not be imputed to him and would not defeat á recovery. (Morris v. Met. St. Ry. Co., 63 App. Div. 78 ; Brennan v. Met. St. Ry. Co., 60 id. 264.) Nor can it be said that the plaintiff was guilty of contributory negligence as matter of law. He was only nine years of age; and the standard for judging 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. (Lafferty v. Third Avenue R. R. Co., 85 App. Div. 592 ; affd., 176 N. Y. 594.) It does not appear that he said anything to the driver or drew his attention to the car. Whether he should have done so or should have attempted to jump from the high seat, which would have been perilous in these circumstances, was a question for the jury. (Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y. 199 ; Kettle v. Turl, 162 id. 258.) Moreover, there was evidence from which it might be fairly inferred- that at this crossing, where the rights of the truck and of the street car were equal, the truck reached the track in timé to pass in safety if the motorman had the car under control, as was his duty, and in such circumstances it cannot be said, as matter of law, that the plaintiff, in view of his age, was not justified in assuming either that the driver was aware of the approach of the car or that the truck would pass in safety.

We have examined the evidence concerning the injuries sustained by the plaintiff and are of opinion that the verdict is not excessive. The other exceptions to which our attention has been drawn have been considered, but we are of opinion that they present no error prejudicial to the defendant.

It follows that the judgment and order should be affirmed, with costs.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Ingraham, J., dissented.

Ingraham, J. (dissenting) :

I do not concur in the affirmance of this judgment, as I do not think that the evidence is sufficient to justify a finding that the defendant was negligent. So far as appears, the truck upon which the plaintiff was riding drove in front of the car when the car was but a short distance from the truck, and there is nothing to show that the motorman could have stopped the car in time to avoid the collision. There is nothing to show that the motorman did not, as soon as "it was apparent that the truck would cross in front of the car, do all that he could to avoid the accident, and that the collision was not solely caused by the action of the driver, without fault of the defendant. The fact that the truck was at the easterly curb line at Second‘avenue when the' car had reached a point about 100 feet north of the street would not justify a finding of negligence, as there was nothing then to indicate that the driver of the truck intended to cross in front of the car instead of waiting, as he should have done, until the car had passed.

I think the judgment should be reversed.

Judgment and order affirmed, with costs.  