Quinlan v. Richmond Light & Railroad — 133 A.D. 402

Majority

p. 402

Thomas Quinlan, an Infant, by Joseph N. Quinlan, His Guardian ad Litem, Respondent, v. Richmond Light and Railroad Company, Appellant.

Second Department,

June 11, 1909.

Headnote

Railroad — street railway — negligence — infant — damages.

Because an infant about .ten years old, who was struck by a. car while attempting to cross a street 32.7 feet from curb to curb, miscalculated the speed of the car which he'saw 215 feet away before he 'left the curb-and made the'mistake of assuming that he could safely cross ih front of it, he is- not guilty of 'contributory negligence as a matter of law.

The. law does not require- the same degree of prudence in children as-in adults.

Where the plaintiff was iso injured that it was necessary to amputate his right-foot a verdict of $3,000 is not excéssive.

p. 403

Appeal by the defendant, the Richmond'Light and Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered.in the office of the clerk of the county of Richmond on the 7 th day of January,.1909, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

John J. Kenney, for the appellant.

Warren C. Van Slyke [George M. Pinney, Jr., with him on the brief], for the respondent.

The plaintiff was struck by one of defendant’s cars and so seriously injured that it became necessary to amputate his right foot. The verdict of $3,000 was not excessive, but the learned counsel for the appellant contends that it is against the weight of evidence; that the plaintiff was shown guilty of contributory negligence as matter of law, and that the court erred in its refusal to grant a non-suit. The denial of the motion for a nonsuit was not error. Even had the plaintiff been an adult the motion could not have been granted. Before attempting to cross the street, which was 32.7 feet from curb to curb, the plaintiff looked both ways and saw the car some 215 feet away. He says that he ran to cross the track. He miscalculated the speed of the car, but it cannot be held that, because he made the mistake of assuming that he could cross the street while the car was going a much greater distance, he was guilty of contributory negligence as matter of law. (Gerber v. Boorstein, 113 App. Div. 808 .) A prima facie case was made by the plaintiff, entitling him to have the jury pass upon the questions of the negligence of the defendant and his own contributory negligence. The verdict is not so greatly against the weight of the evidence as to require its reversal on that ground, and the remaining question is the only one presented which requires special consideration— was the jury justified in finding that the plaintiff was free from negligence contributing to his injury? He was nine years nine months and ten days old at the- time of the accident. He was playing ball in the street, the ball had bounded across the street and he

p. 404

started on a ritn To get it. He testified that before starting he looked both ways for an approaching car an,d saw one about a block away, which is shown to be about 215 feet. When he got between the double tracks, of. the defendant’s road he looked again and discovered that it was only about 41 feet away. He increased his speed and succeeded in clearing the tracks, but was struck in the head by a projecting handle on the car, thrown under it and his foot run over.

The question of his contributory negligence, in view of his age, intelligence and surrounding circumstances, was submitted to the jury under a charge correctly stating the law, to which no exception was taken ; they resolved the question in favor of the plaintiff and their verdict should not be disturbed. While the same acts committed by an adult would have warranted the conclusion of the existence of contributory negligence, the law is not so unreasonable, as the learned trial justice properly instructed tlíe jury, “as to require of children the same degree of prudence that is required of adults.”

The judgment and order must.be affirmed, with costs..

Present — Hirschberg, P. ¡T., Woodward,’ Burr, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.