Opinion
December, 1894.
Tredwell Catlin, for appellant.
Bergen Dykman, for respondent.
The plaintiff's intestate, a boy, was, at the time of his death, of the age of seven and one-half years, and, if sui juris, could only be held to the degree of care required of one of his age of ordinary prudence. The testimony in the case is not very satisfactory, though certain facts were proven. One Griessman was at the time in the doorway of his place of business, at the northeast corner of Duffield and Concord streets, looking out towards the west side of Duffield street, and saw the boy when he was between the two tracks on Concord street, at or near the west crosswalk. The boy was running at the time, as if he started from the northwest corner, and went directly across the street, though Mr. Griessman did not see him until he had crossed one track. The boy ran in front of the approaching car, and was nearer the southerly rail when he was struck, that is to say, he was nearly over the track at that time. The car, after it struck him, ran 102 feet, and when it was stopped he was taken out lifeless from under the car. The grade on Concord street, from west to east, is very steep, and the cars had been only operated with electricity for three days before the day in question.
It is very evident from the testimony that the car, at the time it struck the deceased, was operated at a high and unsafe rate of speed. It may be assumed that the motorman saw the boy, and did all that he could to stop the car, and yet it moved 102 feet, carrying along his remains. We think that we can take judicial notice of the fact that a trolley car which is operated at an ordinarily safe rate of speed can be stopped, emergency or no emergency, in a much shorter space than the distance above stated. There is direct testimony also in the case that the car was moving very rapidly. The negligence of the motorman was sufficiently proven to entitle the plaintiff to go to the jury. A motorman approaching a crosswalk or a cross street should have his car under control for two reasons: Firstly, foot passengers are liable to use the crosswalk, and, though the railroad company has the paramount right of way, yet it behooves the motorman to be vigilant in approaching a crosswalk that he may avoid injury to a foot traveler, though the latter may be careless and take his chances ( Murphy v. Orr, 96 N.Y. 14); and, secondly, vehicles using streets which cross a street railway have an equal right of way with the railroad cars ( Buhrens v. R.R. Co., 53 Hun, 571; 125 N.Y. 702; O'Neil v. R.R. Co., 139 id. 225), and foot passengers using the crosswalks at such cross street have a right to assume that the motormen will slow down their cars as they approach the cross streets to avoid collisions with vehicles. Trolley cars, in crossing tracks of other lines, come nearly to a stop and do not cross till the signal is given by the conductor; so at such crossings foot travelers using the crosswalk have a right to assume that all cars will nearly stop, and we know of no reason why a foot traveler would be negligent, at a crossing of a street not occupied by a railroad, if he assumed that a motorman would comply with the law and would slow down his car before crossing the street, when otherwise there would be a liability of collision with vehicles which have a right of way equal to that of the cars.
We do not think that the deceased was negligent, as matter of law, in running in front of the car. If it had been operated at a reasonably safe rate of speed he would have crossed in safety. Is it negligent for a child seven and one-half years of age to run across a street railroad track, when he can cross in safety if the approaching car is operated at a fair rate of speed? This child did not have the discretion of an adult, and the trolley cars had been operated for three days only in that street. The question of contributory negligence should have been submitted to the jury under the usual instructions given in a case where the injured party is a child of the same age as the deceased. Stone v. Dry Dock R.R., 115 N.Y. 104.
The plaintiff, with the meager testimony offered, and which we assume was all that could be obtained, made out a prima facie case against the company, and the judgment appealed from must be reversed and a new trial granted, with costs to abide the event.
OSBORNE, J., concurs.
Judgment reversed and new trial granted, costs to abide event.