Harry Epstein, an Infant, by Morris Epstein, His Guardian ad Litem, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company, Respondent

Harry Epstein, an Infant, by Morris Epstein, His Guardian ad Litem, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company, Respondent. Second Department, November 17, 1911. Railroad — negligence — injury to pedestrian at street crossing — contributory negligence. In an action by an infant four months old to recover for personal injuries received when he was struck by a trolley car while being carried in his mother’s arms,, it is error to dismiss the complaint upon the ground that ■the mother was negligent as a matter of law where it appears that the accident occurred at a point where a sign erected by the railroad required the motorman to “slow” because the car at that point passed under a bridge near the junction, of another street, which bridge and a curve in the track obstructed the view of persons wishing to cross the tracks, and the motorman drove the car át a high rate of speed without giving a signal, there being evidence of some care on the part of the mother, . Under the circumstances the plaintiff’s mother had a right to presume that the motorman would have his car under control and give reasonable warning and, although the jury might be justified in finding the mother guilty of contributory negligence, she could hot be held to be so as a matter of law. Burr, J., and Jerks, P. J., dissented, with opinion. Appeal by the plaintiff, Harry Epstein, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of November, 1910, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term. Jacob J. Lesser [Harry Yarm with him on the brief], for the appellant. D. A. Marsh [George D. Yeomans with him on the brief], for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The judgment in this case should be reversed; there was a question of fact which should have been submitted to the jury. The plaintiff is an infant, and at the time of the accident, in August, 1907, was four months old, and lived with his parents on Jamaica avenue, between Union and Rockaway Beach avenues. On the 11th day of August, 1907, the plaintiff’s parents, with other members of the family, started for Manhattan, city of New York, the infant plaintiff being carried in the mother’s arms. The defendant operates a double-track surface railroad on Jamaica avenue, and it was with the'intention of taking a car that the plaintiff’s parents attempted to cross the street, as was necessary in order to become passengers. While the complaint alleges that the accident occurred “at or about its [Jamaica avenue’s] intersection with said Park Avenue,” the answer denies this allegation, and the evidence does not clearly show the location of the accident with reference to Park avenue, though one of plaintiff’s witnesses, referring to the bridge which crosses Jamaica avenue very near to the point of the accident, says that there was a sign upon this bridge,'reading “ Slow,” and that this sign was “ on the Park Avenue side of the bridge. On the side where the accident was,” and this same witness testified that after the accident “ the car stopped where it generally stops, not quite a block away,” so that the inference might be drawn that the accident occurred at a point just after the car had passed under the bridge, and at or near the junction of Park avenue with Jamaica avenue, and that it did not stop until it had- gone nearly to the next street, a block away. This is the most favorable view of the evidence, and the plaintiff is entitled to. this view upon appeal from a nonsuit. The evidence was such as to justify the jury in finding that the plaintiff’s mother, with the infant plaintiff in her arms, approached the defendant’s track at a point where by the rules of the- company it was required to go slow, and where the plaintiff’s mother’s vision was obstructed by the low bridge and a curve, and that after looking in both directions and discovering a car.a block and a half away on one side and no car on the other, she attempted to cross over the defendant’s tracks, in • broad daylight and accompanied by several members of her family, and that she was'struck by the defendant’s car coming from under the bridge at a rapid rate of speed. If the jury were justified in drawing the inference that the accident occurred at or near a street intersection, where the defendant owed the plaintiff the duty of having its car under control, or if the jury found that the rules of the company, adopted for the safety of operation, required the defendant’s car to be run slowly under this bridge, it was for the jury to say whether this mother had exercised that reasonable degree of care which a reasonably prudent woman, under the circumstances, would or should have exercised. The evidence shows that, plaintiff’s mother had resided at this point for some time, and she had a right to assume, in going to take a car, that the defendant would operate its cars in the manner required by its own regu- . lations and by the law of the State, and it was for the jury to determine, under all of the circumstances, whether she had exercised that degree of care which the law requires. The photographs in evidence (particularly Exhibit No. 2) might show to one familiar with the location ¿escribed by the witnesses a street intersection immediately adjacent to the bridge •and at the point of the accident,“ and ,if this is the case there can be no question of the defendant’s negligence, for the evidence- is to the effect that the car came through without any noticeable change of speed, and that it was not stopped until it had run nearly a block, although the motorman shouted a warning just as the car struck the plaintiff’s, mother. No bell was sounded. The situation, with a surface car running under a bridge with a curve which shut out a view of the track until people were well into the middle of the street, clearly required some warning, and demanded that the car should be under control, and a person lawfully using the highway, and knowing of such a condition, has some right to rely upon the defendant discharging its duty. It is probably true that the jury might very properly find that the plaintiff’s mother negligently contributed to the accident; the facts and circumstances are such as to suggest that she did not exercise any great degree of care, but at the same time the evidence did not present a case to be determined by the court. Seasonable men, taking into consideration all of the facts, might reach the conclusion that this mother, engrossed with the cares of hex family, mindful of the comfort of her infant son, had exercised all of the care which the circumstances demanded. There is no reason to doubt that the evidence disclosed actionable negligence on the part of the defendant, and the plaintiff is only bound to show that his mother had exercised the degree of care which a reasonably prudent person, under the circumstances, would or should have used, and this includes her right to assume that the defendant would dp its duty and give seasonable warning, or have its car in control at this point. True, she had no light to rely upon this absolutely; she could not rely upon the motorman doing his duty and charge the defendant with liability for any accident which might happen, but the degree of care which she was bound to exercise was the degree of care which a reasonably prudent person would or should have used, knowing that it was the duty of the defendant to exercise the degree of care which the circumstances demanded, and it is not for the court to determine this question under the evidence as it appears in this record, even though it might be conceded that the trial justice might be justified in setting aside the verdict of the jury in favor of the plaintiff. There was evidence of some degree of care; whether that constituted reasonable care was for the jury to say, and the case could not properly be disposed of as a matter of law. The judgment appealed from should be reversed and a new trial granted, costs to abide the event. Hirschberg and Rich, JJ., concurred; Burr, J., read for affirmance, with whom Jenks, P. J., concurred. [DISSENT — Burr, J. (dissenting):] Burr, J. (dissenting): I dissent. On the day of the accident plaintiff’s parents wished to take a car on Jamaica avenue, upon which street they resided, going toward New York. To do this they had to cross the tracks upon which the car coming from New York ran, plaintiff’s mother having him in her arms. '.She testified that she looked up and down the street to see if any ears were coming; that she saw a car to her right (the car going to New York), but that she did not see any car on her left (the car coming from New York, and the car which struck her).' She walked along,, and as she was about to step onto the track she was struck by the running board on the right-hand side of the •car and thrown down, and plaintiff was injured. There may have been sufficient evidence of defendant’s negligence to go to the jury, but I can see no evidence of. the slightest care upon the part of plaintiff’^ mother, and her negligence must' be imputed to him and is sufficient to defeat this action; It is true that she says that before she stepped upon the track she looked and did not see the car approaching on her left, but if she did look she did not look intelligently, for the car was coming and there was nothing to obstruct her view. Plaintiff’s father and mother tried to convey the impression that the view was obstructed, first, by a turn in the road, and,- second, by a bridge of the elevated railroad across the street. The photographs (Exhibits 1 and 2) which plaintiff offered in evidence show that neither of these was any obstruction whatever to a person approaching the track, although possibly they may have, been tó a person on the curb. ' Plaintiff’s father admitted that the-turn in the road, which the photograph shows was slight, was fifty-feet from the place where the accident occurred, and that the elevated structure was “ ten feet low.” There is no proof that the point of the accident was either at or near a street intersecting Jamaica avenue, and the photograph would indicate that such was not the case. The question of the speed of the car has nothing to do with the contributory negligence of plaintiff’s mother. Whether the car was going rapidly or slowly would not have prevented her from seeing the same, and she should have refrained from stepping forward while the car was approaching. The fact that she was not struck by the fender or the front part of the car, hut that she came' into collision with the running hoard upon the side, clearly demonstrates that she heedlessly walked into the side of a moving car. I think that the judgment should be affirmed, with costs. Jenks, P. J., concurred. Judgment reversed and new trial granted, costs to abide the event.