Flynn v. Metropolitan St. Railway Co.

The question in this case is whether the driver of the car was guilty of negligence; that is, whether there was anything to go to the jury on that head. Upon the question of contributory negligence, we think the case might have gone to the jury. It cannot be said, as matter of law, that the child failed to exercise that degree of care which might reasonably have been expected of him. As to the main question, to wit, the driver’s alleged negligence, the claim is that he made no effort to stop the car; that, while he was turning his horses to the left with one hand, he did not at the same time apply the brake with the other hand. It is clear that if the driver had applied the brake, and had not turned his horses to one side, the child would have been run over. The situation was critical, and the danger imminent. The horses were almost upon the child. There was the primary and immediate danger. What the situation imperatively demanded was that the driver should lend his energies to the swerving of the horses. He met that claim upon him with promptness and vigor. But it is said that he should have done more; that in the midst of the excitement, and on the spur of the moment, he should have perceived the possibility of a later danger, and provided against it. There was no evidence tending to show that a driver, under such circumstances, could swerve his horses swiftly with' one hand, and at the same moment adequately apply the brake with the other. Assuming, however, that the jury might have inferred that this was feasible, still the appellant’s contention would extend the rule of negligence into impossible channels. What was required of the driver was the reasonable care and diligence of a person endowed with ordinary capacity, and fairly equipped for the particular service in question. What the appellant calls for is, not ordinary care and prudence, but extraordinary capacity and foresight. The driver should, in this view, possess a mind capable of thinking coolly and deliberately, yet promptly, in the midst of excitement and danger. And this great and unusual power should be coupled with the physical capacity to perform simultaneously two distinct functions, each of which, but for this capacity, might

“I guess the car was about six or eight feet from him at the time he started to cross. The horses were going at the usual gait,—something like six miles an hour. Q. And with the horses going at the usual gait, six miles an hour, this boy starts in, six or eight feet in front, to cross over, and the driver, to prevent the horses from running him down, had to swerve them to one side? A. To one side. The side of the car nearest the west side of the avenue hit him.”

All the other witnesses called by the plaintiff put the distance at but between two and three feet. Mary McAuliffe says:

“I would put it between two or three feet in front. It was so near that the driver had to swerve the horses’ heads so that they would not hit him.”

William J. Hickey says that it was about the width- of the car’s platform, which the foreman of the jury said was a couple of inches over two feet. Hickey then testified as follows:

“The boy goes in front of the horses about two feet two inches from their heads, although this stone cart is coming along on the opposite side, right close to the track,—pretty close to the track. Q. And the horses miss him, because the driver swerves them to the east, but the dashboard strikes him and knocks him down under the cart? A. Yes, sir.”

The last witness of all, Thomas Tregoning, made this still clearer. He testified as follows:

“Tlie boy went so near in front of the horses’ heads that the driver, to prevent the horses’ heads from hitting him, had to swerve the horses to the east, and that brought him away from the brake, which is on the right,—on the west. _ Q. So that he couldn’t attend to both at the same time, and he took the horses, instead of the brake, as the quickest way to prevent the accident. That is the way it looked, didn’t it? A. Yes, sir.”

This was substantially all the testimony upon the subject. Surely, from that testimony no jury could possibly have found or inferred that the use of the brake alone might have saved the boy. This testimony also accentuates the extreme difficulty of the situation, and shows must conclusively that the swerving of the horses was the urgent requirement of the moment. The driver’s act in doing what he did must indeed have been almost involuntary. It was the one thing which any driver possessed of the least presence of mind would have done. Had the driver attempted to do more, and failed, there would have been greater plausibility in attributing such failure to his negligence than there is in the present charge. For then it might with some show of reason be asserted that, with the child almost under his horses’ heads, the driver should have concentrated his efforts upon the one function which the imminence of the danger called into immediate and exclusive play.

We think, therefore, that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.

VAN BRUNT, P. J., and PATTERSON, J., concur.

The action was brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The order dismissing the complaint was made at the close of the plaintiff’s evidence, no evidence having been given on the part of the defendant. In passing upon the correctness of this order, we are required to give the plaintiff the benefit of the most favorable finding of facts which the jury would have been justified in making from the evidence. Having this rule in view, the facts were as follows: The deceased was a bright, intelligent boy, seven years and eight months old, and lived with his parents on Fortieth street, west of Tenth avenue, New York City. He was sent by his mother, at 4:45 p. m., on an errand which required him to go to a store on the east side of Tenth avenue, between Fortieth and Forty-First streets. After doing the errand the boy started to return to his home. There were two street-car tracks lying substantially in the center of Tenth avenue. The boy attempted to cross Tenth avenue from oast to west, near the northerly cross walk, at Fortieth street. The pavement on the easterly side of the track in Tenth avenue was torn up and being repaired, so that teams were obliged to pass along the avenue on the westerly side of the tracks. As the boy approached the tracks, a Belt Line car, so called, was passing along towards the south on the westerly track, and about 20 feet behind it was the defendant’s car, also going south on the same track. On the westerly side of the Belt Line car, and 4 or 5 feet from it, was

Upon these facts, there would seem to be no doubt but that the questions of the negligence of the defendant, and the absence of contributory negligence of the deceased, were for the jury, and not for the court. The boy was clearly of sufficient age and intelligence to be chargeable with his own negligence, but he was a boy of tender years, and not a mature man. It is well settled that a boy of his age would not be chargeable with the same degree of care as a mature man would be. Stone v. Railroad Co., 115 N. Y. 104 , 21 N. E. 712 . And we think the age of the boy must also be considered, in determining the degree of care to be exercised by the driver of the car which would relieve the defendant from the charge of negligence. It was the duty of the driver to exercise such degree of care as was commensurate with the danger to be apprehended, and clearly more danger was to be apprehended, by reason of the tender age of the boy, than if he had been a mature man. The jury would have been justified in finding that the driver was negligent, under the circumstances, in not applying the brake and slowing down the car; that he saw the boy, and was in a position to see all the danger surrounding him, and especially the presence of the cart loaded with stone, moving northerly, and before it passed the Belt Line car, so as to be visible to the boy; that these dangers were visible to him in time to have enabled him to apply the brake, slow down his car, and so avoid any accident; that it was his duty to do this; that he could do it; that he neglected to do it, and was therefore guilty of negligencé. The jury would have been' justified in finding that the boy was free from contributory negligence in attempting to cross the avenue and the tracks of the street railroad at the time and place 'he did; that, when he started to cross the tracks, there was apparently a clear way, and a reasonable opportunity to cross safely, at least in the judgment of a boy of his tender years; that there was an open space of 20 feet between the two cars, and that the cart loaded with stone was hidden from his view behind the Belt Line car; that when he was part way across the track his passage was cut off by the loaded cart, and though he had actually crossed over the west track, in front of the horses, he believed it better to stop and let the cart pass than attempt to go further, and risk the danger of passing in front of the cart; that he'’was in a place of danger,

It is well settled that the rules as to the respective duties of foot passengers and street-railroad companies, as to the crossing of the tracks, are different from the rules applicable to travelers in the highway and steam railroads crossing such highways. In the case of steam railroads the travelers along the highway must, when they see a train approaching, wait for the train to pass, before attempting to cross over; but, in the case of street railroads, foot passengers may cross over, though they see cars coming. They must exercise care in so doing, and the street-car driver must exercise care also. Each must exercise such care as the circumstances of the particular case require, and the want of proper care on the part of either is ordinarily a question of fact for the jury, in view of all the circumstances surrounding them. The jury are to consider the evidence, and to draw the inferences therefrom; and their judgment, and not that of the court, is to be taken as to the question of negligence and contributory negligence. There are cases in which the evidence is such that no inference can be drawn by the jury, other than that in a single direction; and then the court may and should take the case from the jury, and itself determine the facts and direct the verdict and judgment. This, I think, was not such a case. The questions of fact here were for the jury, and the case was improperly taken from their consideration.

It is said that it was impossible for the driver of the car, after he saw the boy crossing the tracks, to apply the brake and slow down the car, and at the same time turn his horses’ heads so as to prevent the horses from striking the boy. This was a question of fact for the jury, and not for the court. He held the lines in one hand, and the other hand was upon the brake. He saw, or could have seen, the boy when he started to cross the west track. The boy was then six feet from the horses’ heads. He might have acted at once, using one hand in turning the horses and the other in applying the brake. Certainly it was for the jury to determine whether he could or not. The driver was not himself sworn. He did not testify that he could not do this. Until he had spoken upon the subject, the court could not say, as a matter of law, that he could not do this. It was, at most, a matter of inference to be drawn from the circumstances; and the jury, and not the court, were to draw the inference the one way or the other. It is said that some of the witnesses gave their opinions on the subject. Their evidence was in answer to questions formulated by defendant’s counsel, he putting the words in their mouths. But, at all events, their opinions were not conclusive; the conclusion was to

The judgment appealed from should be reversed, and a new trial ordered, with costs to appellant to abide event.

O’BRIEN, J., concurs.