
    Mary Finn, an Infant, by Edward Finn, her Guardian ad Litem, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      Negligence—a child si<c years old injured while crossing a railroad track in a city street — when not guilty of contributory negligence as a matter of law — absence of a flagman at a street crossing.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff, a Bright, intelligent girl, six years old, attempted to cross diagonally from the west to the east-side of a street on which the defendant maintained a steam railroad, near a street intersection where no flagman was stationed; that after she had reached the track, the westerly rail of which was but two feet ten inches from the sidewalk which she Lad left, a bystander called her attention to a locomotive which was coming up quietly behind her, giving no signal . of its approach, but which she might have seen had she looked, and that while she was attempting to retrace her steps the locomotive struck her.
    
      Held, that it could not be said, as a matter of law, that the plaintiff would not have availed herself of a proper signal uf the approach of the locomotive, if one had been given, or that she was guilty of contributory negligence as a matter of law.
    Semble, that negligence on the part of the defendant might be predicated upon the failure of the defendant to furnish a flagman at the street crossing.
    Appeal by the defendant, The Delaware, Lackawanna and .Western. Railroad Company, from an order of the Supreme Court, made at the Oswego Special Term and entered in the office of the clerk of the county of Oswego on the 26th day of September, 1898, granting the plaintiff’s motion for a new trial -made upon the minutes.
    On the ISth day of October, 1893, at about half-past ten o’clock in the forenoon, the plaintiff, who was then a child but a little more than six years of age, was struck by one of the defendant’s locomotives, and her left foot was injured to such an extent that it subsequently became necessary to amputate a considerable portion of the toes of that foot.
    Water street, in the city of Oswego, which was the scene of. the accident, runs north and south, and is but 'thirty-eight- feet in width. A short distance south of the point where the plaintiff received her injury, Water street is intersected and crossed by Van Burén street, which runs east and' west, and is sixty-six feet in width. The defendant’s track is laid upon the surface of Water street, and the locomotive, which came into collision with the plaintiff, was backing thereon towards the north at the rate of about five miles an hour.
    The plaintiff resided with her parents' upon First street, the next street west of and running parallel to Water street. On the morn-i;ig in question she had started from home to go to her aunt’s, in another part of the pity; she walked upon the north side of Yan Burén street, and as she reached a point near the northwest corner of Water street the defendant’s engine was moving across Yan Burén street, having just emerged from behind the Scanlon House Avhich stood upon the southwest corner of Water street, and Avhen the plaintiff reached the corner the engine was about half-way across the street. At this point the plaintiff discovered her sister playing Avith some other children upon the east sidewalk of Water street, in front of a house occupied by a family by the name of Griggs, and she thereupon started to cross the street to join her sister. She walked in a diagonal line with her back or side'turned toAvard the direction from which the engine was approaching, and, as she stepped upon the defendant’s track, she Avas struck by the engine, thrown to the ground and injured in the manner hereinbefore described.
    The point at which the accident occurred was eighteen feet north of. the north line of Yan Burén street, and for this distance of eighteen feet the west rail of the defendant’s track was but two feet ten inches from the outer edge of the sideAvalk on the west side of Water street. There was no flagman at the intersection of these two streets, and no warning of any kind was given of the approach of the defendant’s locomotive. • ^
    At the close of the plaintiff’s case a nonsuit was granted upon the ground that the defendant’s negligence was not the proximate cause of the injury, but thereafter a new trial was granted by the learned trial justice, and from the order granting the same this appeal is brought.
    
      Willia/m 8. Jenney, for the appellant.
    
      Elisha B. Powell, for the respondent.
   Adams, J.:

The evidence upon the part of the plaintiff tends to prove that the defendant’s locomotive was passing through a narrow street in a populous portion of the city where children were in the habit of congregating in front of their homes, without giving.any signal of its approach, and without any precaution whatever being taken to avoid just such accidents as the one which occurred upon the occasion in question. This certainly was. gross negligence, and it was so clearly established that no attempt was made upon the argument to deny it. On the contrary, the learned counsel for the- defendant, virtually conceding the negligence of his client, took refuge in the contention that such negligence cannot be said to have caused the accident complained of, inasmuch as the plaintiff was, at the time it occurred, an infant of such tender years that she would not have heeded or .appreciated the means ordinarily employed to warn people of impending danger had such means been adopted in the present instance. This proposition, however, does not commend itself to us as one which can be successfully maintained, in view of the circuim stances surrounding the case. The plaintiff was a bright, intelligent •child for one of her years, and she had occasionally been sent to the locality of the accident upon errands for her mother ; she had seen ■engines frequently as they passed along Water street and presumably knew something of-their dangerous character, and it is but fair to .assume that had her attention been directed to this particular engine, .-and to the fact that it was coming towards her at a comparatively .rapid rate, by the ringing of a bell or the sounding of a whistle, she would have paid some heed to the warning and have avoided the •consequences which ensued.

, That such assumption is not altogether unwarranted is made evident by the testimony of the witness Thomas Ryan, who tells us 'that he watched the little girl as she started across the street, and when he discovered how imminent the danger was he hallooed to her and that she then turned, and, seeing- the engine immediately upon her, became confused and éxcited and instead of stepping off the track, at the east side thereof, turned around with the apparenintention of retracing her steps and was struck.

But the omission of the ordinary signals is not the only factor in the case which tends to establish ; negligence upon the part- of the defendant. Under the circumstances to which reference has already been made, the jury would have been at liberty to find, had the case been submitted to them, that the defendant was called upon to furnish some other means for the protection of the public at this particular locality, than those which áre ordinarily employed at crossings of a highway in the country; and had there been a flagman stationed there at the time of the accident, it is quite possible that the accident would not have occurred. (Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583.) But even were this not the case, we fail to see how it can be held as matter of law that the plaintiff would not have availed herself of any proper effort made for her protection had the opportunity been afforded her.

The case of Chrystal v. T. & B. R. R. Co. (124 N. Y. 519), cited by the learned counsel for the defendant in support of his contention, lias no application to the facts here presented, for in that case the infant was a mere baby about seventeen months old who had escaped, from his mother, and, finding his way on to the railroad track by crawling under a gate, tottered along toward the rapidly approaching engine, clapping his hands with gleeful pleasure, unconscious of and manifestly without the capacity to realize the danger which threatened him.

It is insisted, however, that even conceding the defendant’s negligence, the plaintiff ought not to recover by reason of her own contributory negligence, and it is at this point that we are brought into contact with the vital question in the case. That the locomotive which struck the plaintiff was in plain sight for at least eighty-four feet before it reached the point where the accident occurred, is undisputed ; that the plaintiff might have seen it had she looked, and that she did not look; are facts too clearly established to admit of controversy; and it is equally clear that had she been of sufficient age to enable the court to determine as matter of law that she was sui juris, these facts would not only have justified, but they would have compelled, a nonsuit.

The difficulty, however, which here presents itself arises from the fact that the laAv finds it impossible to determine arbitrarily at Avliat age an infant may be deemed capable of exercising that degree of judgment and discretion Avhich shall make it responsible for its acts of commission or 'omission, and we know of no case where it has been .held as a proposition of! law that a child six years of age was chargeable with negligence. ¡

In the case of Wendell v. N. Y. C. & H. R. R. R. Co. (91 N. Y. 420) it was held that á.lad seveh years old, was, under the peculiar circumstances of that case, capable of appreciating, and that he did appreciate, the peril of the situation, which confronted him, and because the evidence placed it-beyond doubt that he recklessly encountered that peril, it was further held that a recovery could not be had. But in a more recent decision in which that, case was considered and commented upon it was said that the.trial court had labored under a misapprehension j- in supposing that it (the Wendell case) decided as a proposition óf law that a child of seven years was capable of exercising judgment so as to be chargeable with contributory negligence.” (Stone v. Dry Dock, etc., R. R. Co., 115 N. Y. 104, 110.)

And more recently still this court has held under circumstances quite similar to those here present,,save that the accident was caused by a car propelled by electricity instead of by a locomotive, that whether .or hot an infant seven years and two months old was mi juris must be left to the determination of the jury as a question of fact (Penny v. Rochester Ry. Co. 7 App. Div. 595); and on appeal this decision was affirmed,j the Court of Appeals holding expressly that it was not error in the "trial court to refuse to charge that if the jury found that the plaintiff saw the car coming and heard the signal, and ran out in front of the car for the purpose of getting across-the street ahead of it, and failed, that he was guilty of contributory negligence, as matter of law, which barred a recovery. (154 N. Y. 770)

In that case, as in this, the infant was bright and intelligent; he was familiar with the locality" where the accident happened, and . with the danger which -he Was liable to encounter from the cars passing, along the street, against whiqh danger he had been frequently cautioned, and yet, in a moment of | forgetfulness, caused, doubtless, by his anxiety to reach home before dark in order to avoid punishment, he recklessly ran out in front of a car which was approaching in plain sight and received an injury which resulted in the loss of his right leg.

We have said that the, circumstances of the two cases are quite parallel, and such is,, indeed, the fact; but if there are any distinguishing features, we think they will be found to favor the plaintiff’s contention in this case, the simple, undisputed facts of which may be thus epitomized:

A child, six years of age, approaches a railroad track upon which a locomotive is coming towards her. Unconscious of the danger which menaces her, and intent only upon joining her playmates upon the opposite side of the street, she proceeds to cross the defendant’s track with her back towards the locomotive, which, although in plain sight, is giving no signal of its approach and moving along, so quietly that several witnesses of the accident testified that they did not hear it; when upon the track the child’s .attention is called by a bystander to the danger which threatens her, but too late to enable her to avoid it, and she is struck. Under these circumstances, can it be said as matter of law that she was guilty of contributory negligence ? ,

We are not unmindful of the rule which requires, even infants, to approach a known danger with some degree of care and prudence ; but the measure of care required in such cases is largely dependent upon the age of the child, its intelligence and the circumstances under which the danger is approached. In view of the fact disclosed in the foregoing recital and of the authorities to which reference has been made, and especially in view of the conceded negligence of the defendant, we feel constrained to answer the question just propounded in the negative, and consequently to sustain the conclusion finally reached by the trial court, that the case " presents questions of fact which should have been submitted to the jury.

All concurred.

Order affirmed, with costs.  