
    Emeline C. Baker, Resp’t, v. The Eighth Avenue R. R. Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    Negligence—Street railroads.
    Plaintiff, a child eight years of age, attempted to cross the street at a place where there was no cross-walk, and passed behind a car going up town as another came down by it, and stood between the tracks. The driver of the latter car pulled the horses away from her, when she was struck by the hip of the nearest one and knocked under the car. Held, that a verdict in favor of the plaintiff was not sustained by these facts.
    Appeal from judgment entered on verdict of a jury.
    
      John M. Scribner, for app’lt; Jacob Fromme, for resp’t
   Ingraham, J.

A review of the evidence in this case has satisfied us that the finding of the jury that the injury was caused by defendant’s negligence cannot be sustained.

There were three witnesses called on behalf of plaintiff as to the occurrence that resulted in the injury.

The plaintiff herself, a child eight years of age at the time of the accident, testified that she passed behind a car going up town, and as she did so a car came down town, the horses, as she stood between the tracks, being directly in front of her; that she stood between the up town track and the down track; that she saw the ■driver pull the horses away from her; as he did so she was struck by the hip of the horse nearest to her and was thrown under the car.

The place at which the plaintiff crossed was about midway between two cross streets; there was no cross sidewalk in that vicinity.

Haley, a witness called for the plaintiff, testified that he noticed the child pass behind the up town car; that he saw her struck by the collar of the horse attached to the down town car; that at, that moment the driver pulled the horses around to the west away from the ghild and the child was then struck by the hip of the horse and was thrown under the car. He also testified that shortly before the accident he saw the face of the driver turned toward the west.

Finnelly, a policeman, was the third witness called for plaintiff. He testified that he was on the back platform of the uptown car; saw the child pass behind the car and stand between the tracks, and that he noticed that one of the horses was outside of the rail,, between the two tracks, and that the plaintiff was knocked down, by the flank of the horse and her leg got under the car.

There was no reason for the driver to expect that a person would attempt to cross right behind the uptown car; there was-no crosswalk at which persons were in the habit of crossing, and the mere fact that he, at that moment, turned his head away from the horses or the front of the car would not of itself justify a finding of negligence.

Haley says that the collar of the horse striking the child was what attracted the attention of the driver. The plaintiff herself says that she was struck by the back .of the horse, and Finnelly, the policeman, says that the first thing he saw was plaintiff knocked down by the flank of the horse.

It is not material which of these versions is accepted. It is apparent that the appearance of the child so near the track and in a-place of possible danger justified the driver in taking means to avoid an accident. He had to act rapidly with little time for reflection, and it cannot be said that because it now appears probable that had he allowed his horses to go straight on that the child would have escaped justify a finding that he was negligent ; at most it was an error of judgment as to what, under the circumstances, would most likely prevent an accident, and there is no question but what he acted in good faith and did what he supposed, under the circumstances, was the best thing to do. ■

As was said in the case of Fenton v. The Second Avenue R. R. Co., 126 N. Y., 627; 36 St. Rep., 385: “ Street railway cars have a preference in the streets, and while they must be managed with care so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way.”

There was no reason why this child should have passed behind the car and stand so near the track of the down-town car that the horse could hit her, and the driver had no reason to expect that any person would act as the plaintiff testifies that she did, and his efforts made in good faith and in the exercise of his best judgment at the time to avoid injury will not justify a finding that he was negligent

The. testimony of the defendant gives a slightly different aspect to the case, but makes it only more clear that the action of the driver, was. under the circumstances, judicious and proper.

We think, therefore, that the court should have directed a verdict for the defendant, and it follows that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., concurs in result

Daniels, J.

—I think the case was not for the jury, but for a dismissal of the complaint, and, therefore, agree to a reversal and new trial.  