Jones v. Brooklyn Heights Railroad

It can be fairly inferred from the evidence in this case that Maggie Jones, aged 4 years, went upon the street to play, in charge of her 12 year old sister, on July 12,1893, in broad daylight, and that she and an older sister proceeded to Fulton street, between Ralph and Howard avenues. They started to cross Fulton street, the elder sister being in the lead, and Maggie following her. Defendant’s car, about 200 feet away, was approaching from Howard avenue, the line of their passage. There being nothing to obstruct the motorman’s view of the children, he continued his course and speed. The oldest child succeeded in safely crossing his track, but Maggie, as she stepped upon the track, was knocked down and run over. The mortorman failed to see her till someone hallooed to him, when he turned around, from watching and speaking to the child who had safely crossed over and was near the sidewalk, and saw little Maggie for the first time, directly in front of his car, a foot or two ahead of it, when he put on his brake, and stopped the car within fifteen feet, but it was too late; she had been killed. He said he could have seen her before if he had looked to the front of him. This is an action to recover damages for her death. The trial court nonsuited plaintiff, on the ground that the motorman was not negligent, though the motion was made also on the ground of contributory negligence of the deceased and her parent. We will waste but little time in referring to the latter, though the respondent still presses it, for it was at least a question for the jury to determine whether this child was sui juris or non sui juris. If the latter, she could not be chargeable with negligence. It is too well settled to require citations that it is not negligence, as a matter of

Judgment must be reversed, and a new trial ordered, with costs to abide the event.