Young v. Atlantic Avenue Railroad

— 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 Grriessman 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 cross-walk. 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 ear, 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, aftej’ 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 only been 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 he could to stop the car, and yet it moved 102 feet, carrying along his remains. We think that we can take judicial knowledge of the fact that a trolley car which is operated at an ordinary 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 cross-walk or a cross street should have his car under control for two reasons: Firstly. Foot passengers are liable to use the cross-walk; and, though the railroad company has the paramount right of way, yet it behooves the motorman to be vigilant in approaching a cross-walk, 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 . Secondly. Vehicles using streets which cross a street railway have an equal right of way with the railroad cars. Buhrens v. Dry Dock, etc., Railroad Co., 53

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 Railroad Co., 115 N. Y. 104 ; 23 St. Rep. 551 . The plaintiff, with the meagre 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, costs to abide the event.