Opinion
March 8, 1907.
Charles F. Brown, for the appellant.
Henry S. Dottenheim, for the respondent.
Appeal from judgment for personal injuries.
Plaintiff at the time of the accident was about six and one-half years old, and was normally bright for his age and accustomed to go into the street unattended. It was conceded that he "was of sufficient age and intelligence and discretion to appreciate to some extent the necessity for caution and the necessity for exercising some judgment and discretion."
The accident occurred in the middle of the block, or at least some distance from the crosswalk, at six o'clock in the afternoon of an August day, and consequently in daylight. The car was running very slowly and the boy was crossing the street diagonally so that his back was partly toward the car. When the boy walked upon the track the car was very close to him, certainly not more than fifteen feet, and some of the witnesses say not more than eight or ten.
There was no evidence that the plaintiff exercised the slightest care, or ever looked in the direction from which the car was coming before he essayed to cross the track. If he had, in view of the concurrent testimony as to the proximity of the car, it would have amounted to heedless negligence to have attempted to cross in front of it, and the complaint might well have been dismissed for lack of proof of plaintiff's freedom from negligence. But if the court concluded to send the case to the jury the circumstances called for most careful instructions relative to plaintiff's duty to exercise proper care. The main or colloquial charge was unexceptionable, and when asked by defendant to charge that, in finding whether the boy exercised reasonable care for his own safety, the jury might consider the fact that there was no evidence that he looked for the car before going upon the track, the court did so but supplemented this instruction by saying: "I should add in explanation of that instruction that there is no hard and fast rule of law that requires a person to look up and down the track when about to cross the track of a street surface railroad. If the car, at the time a person undertakes to cross, is sufficiently far away that a person in the exercise of ordinary care may get across in safety, then the failure to look is not evidence of negligence. In a crowded city like this, if every person waited for a car to stop and slow up before they got across the street, they would be a good while in getting across, but it is proper that you should bear in mind all the evidence."
This modification of or supplement to defendant's request was duly excepted to, and, as we consider, calls for a reversal of the judgment. We are not prepared to hold that, even considered as an abstract proposition of law, the instruction was accurate. It is undoubtedly the duty of a person attempting to cross a railway track, whether in the city or the country, to exercise care to ascertain whether it is safe to make the attempt, and the failure to look for an approaching train or car must be considered as some evidence of negligence. Of course it is not conclusive. It may well be that at the time the foot passenger should have looked the car was so far away that, even if he had looked, it would not have been imprudent to attempt to cross. In such a case the jury may consider that the failure to look was not the proximate cause of the accident, and this is undoubtedly what the learned court intended the jury to understand. But whatever may be said as to the correctness of the abstract proposition it was strikingly inappropriate to the facts shown by the evidence in this particular case, and its tendency was to lead the jury to believe that it was unimportant whether or not the plaintiff did, in fact, look for the car before going on the track.
The judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.
PATTERSON, P.J., INGRAHAM, McLAUGHLIN and HOUGHTON, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.