
    Michael H. Connolly, an Infant, by Guardian, Resp’t, v. The Knickerbocker Ice Company, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 16, 1889.)
    
    1. Negligence—Stbeet bailboads—What evidence justifies finding
    OF NEGLIGENCE.
    In an action to recover for personal injuries sustained by the plaintiff, a child of seven years of age, while riding on the platform of a street car. The injury was caused by a collision between the street car and one of the defendant’s ice wagons. The wagon was going one way and the car another, and as the car was turning into an intersecting street a wheel of the wagon came into collision with the rear end of the car, and the plaintiff was thrown from the side platform near that end of the car. There was evidence tending to show that the wagon was going rapidly and continued to do so until the collision occurred. The jury were permitted to find that the switch at the intersecting street would, if observed by the driver of the wagon, have shown that the car would be turned into it, and in view of the situation he might and should have slackened his speed and avoided a collision. Held, that the evidence on the part of the plaintiff and the inferences fairly derivable from it permitted the conclusion that the collision was caused by the negligence of the defendant’s driver.
    2. Same—Duty of exbbcising seasonable case—Question fob the juey.
    The plaintiff was chargeable with the duty of exercising such degree of care as could reasonably be expected of one of his age, which, in view of" the circumstances, was properly for the consideration of the jury upon the: question of contributory negligence.
    3. Same—When not negligence per se.
    The failure of the plaintiff to look for approaching vehicles was not necessarily negligence on his part.
    4. Same—Duty of passenger—When no defense.
    The fact that a passenger on a street car stands np->n the outer platform when there is an opportunity to take a seat in the car, might, m an action against the railroad company to recover damages for its negligence under ordmary circumstances, constitute a defense, but that may not be said when the action is against another party, as the defendant in such case-cannot assert as a defense the mere duty of the passenger in his relation as. such to the railroad company.
    5. Same—Violation of statute—Not necessarily negligence—Laws.
    1880, chap. 585.
    While the violation of the statute, which provides that no minor child not being a passenger shall be allowed upon the platform or stops of any street car, etc,, may be proved as a fact for consideration by the jury, it. does not necessarily establish negligence.
    6. Same—When violation does not take away right of recovery.
    Nor, assuming such violation, is he denied the right to assert the defendant’s negligence as the cause of the injury, and charge it with liability as the consequence.
    Appeal from judgment of the supreme court in the second judicial department affirming judgment entered on verdict in favor of the plaintiff.
    
      Alfred E. Mudge, for app’lt; A. J. Skinner, for resp’t.
    
      
      
         Affirming 8 N. Y. State Rep., 901.
    
   Bradley, J.

—This action was brought to recover damages resulting from personal injuries suffered by the-plaintiff, alleged to have been occasioned by the negligence-of the defendant. The injury was caused by a collision on Court street, in the city of Brooklyn, between a street car and the ice wagon- of the defendant. The wagon was going one way and the car the other, and as the car was-turning from that street into another street, a -wheel of the-wagon came in collision with the rear end of the car and the plaintiff was thrown from the side platform near that end of the car on which he was standing. The question of" negligence of the defendant was, perhaps, a close one, but ■ the evidence seems to have been such as to permit that imputation, and required the submission of such question to the jury as one of fact. Both the wagon and the car were properly in the street, and the duty was with the driver of each to use reasonable care against injury to others. In this instance they approached each other at or near the junction of Court and Nelson streets, and the car-was on the curve proceeding to turn into the latter street when it was struck by the wagon.

The main evidence of negligence of the defendant was that relating to the speed it was being driven. There is. evidence tending to prove that it was going rapidly, and continued to do so until the collision occurred. It is, however, said, with the support of evidence tending to prove the fact, that if the car had continued in Court street there would have been no collision; that the driver was not aware of the purpose to turn into the other street until both reached Nelson street, and that then it was too late for the driver of the wagon to avoid the collision caused by the swinging of the rear end of the car into the line of the wheels on one side of the wagon in making the turn, and that the driver did what he then could to get the wagon out of the way óf the car. Upon evidence, given on the part of the defendant, if taken by the jury as a full and correct representation of the situation, they could not properly have charged the defendant with liability. But the jury were permitted, upon evidence given upon the trial, to find that when the movement was first made to turn the car the defendant’s driver, influenced by reasonable care, and in view of the situation, and exercising it, may, and should have, slackened the speed of the wagon, and by doing so the collision, and the consequences resulting from it, would have been avoided. And that while the driver did not know, or suppose, until the car reached the intersecting street, that it would be turned into it, the switch there would, if observed, have shown the opportunity to do so.

The evidence on the part of the plaintiff, and the inferences fairly derivable from it, permitted the conclusion that the collision was caused by the negligence of the defendant’s servant who was driving the wagon.

The further question is, whether it appeared that the plaintiff exercised the care required of him. The burden, was with him to make it so appear by evidence. He was then of the age of seven years, and was chargeable with the duty of exercising such degree of care as could reasonably be expected of one of his age, which, in view of all the circumstances, was properly for the consideration of the jury upon the question of contributory negligence. Barry v. N. Y. C. and H. R. R. R. Co., 92 N. Y., 289; Byrne v. N. Y. C. and H. R. R. R. Co., 83 id., 620; Thurber v. H. B. M. and F. R. R. Co., 60 id., 326.

There was some conflict of evidence in relation to the-circumstances under which the plaintiff got on to the car, but the finding was permitted by it that the plaintiff, as he had done on one or more occasions before, appeared at the switch, turned it to enable the car to go from Court into Nelson street; that he did so by the request of the conductor, who told him to do it and get on to the car; that the plaintiff did so with a view to obtaining from the conductor a penny, and that while he stood on the platform waiting for it, the collision occurred which caused the injury. The plaintiff says he did not see the wagon, nor did he look to see if any wagon was coming. The car wras then turning on its way into Nelson street.

He took no observation to see whether there was any danger to come from collision of the car with anything passing on the street. As matter of law it cannot be said that he was required to apprehend that there might be an occurrence of that character, or that he might be subject to such a cause of danger. So that the failure to look for approaching vehicles on the street was not necessarily negligence on his part. The fact that a passenger on a street car stands upon the outer platform when there is opportunity to take a seat in the car might, in an action against the railroad company, to recover damages as for its negligence, under ordinary circumstances, constitute a defense. Clark v. Eighth Ave. R. R. Co., 36 N. Y., 135.

But that may not be so when the action is against another party, as the defendant in such case cannot assert as a defense the mere duty of the passenger in his relation as such to the railroad company. We think the question of contributory negligence of ' the plaintiff was for the jury. And they were permitted, upon the evidence, to find that the negligence of the defendant was the sole cause of the injury. The motion for nonsuit was, therefore, properly denied, unless, as suggested by the defendant’s counsel, the plaintiff was chargeable with such negligence by force of the statute, which provides that no minor child not being a passenger shall be allowed upon the platform or steps of any street car, and that it shall be the duty of constables, etc., to arrest any child violating such provision, who, upon conviction, shall be punished by fine not exceeding five dollars for the offense. ■ Laws of 1880, chap. 585.

While the violation of such statute may be proved as a fact for consideration by the jury, such violation does not necessarily establish negligence. Knupfle v. Knickerbocker Ice Co., 84 N. Y., 488.

The getting upon the car was not the immediate cause of the plaintiff’s injury, and assuming that the plaintiff violated the statute, he was not for that reason denied the right to assert the defendant’s negligence as the cause of the injury and charge it with liability as the consequence. Carroll v. Staten Island R. R. Co., 58 N. Y., 126; Platz v. City of Cohoes, 89 id., 220.

In this case the finding was warranted that the plaintiff got on to the car, not as a passenger, but temporarily by the invitation of the conductor.

None of the defendant’s exceptions were well taken.

The judgment should be affirmed.

All concur except Potter, J., dissenting, and Brown, J., not sitting.  