Lillie Bennett, an Infant, by Charles H. Archibald, her Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

Lillie Bennett, an Infant, by Charles H. Archibald, her Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Negligence—whether a child is sui juris is a question of fact—relative care required in crossing a street and a steam railroad— what damages are not excessive. Where an action is brought by a child, eight years of age, to recover damages resulting from injuries caused by the alleged negligence of the defendant, a street railway corporation, in running over her with a trolley car, the question whether or not the plaintiff was non sui juris is one for the jury. Semble, that there is a difference between the degree of care required of one in crossing a street railroad and in crossing a railroad operated by steam. Where it appears that the face of a girl was permanently disfigured; that her collar bone and four ribs were broken, and that her pelvis was injured, a verdict for 86,000 cannot be regarded as excessive. Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the City Court of Brooklyn, entered in the office of the clerk of said court on the 10th day of April, 1895,. upon the verdict of a jury, for $6,000, and also from an order entered in said clerk’s office on the 15th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes. Upon the trial of the action, which was brought to recover the damages resulting from the defendant’s alleged negligence, an exception was taken to the court’s refusal to charge that the plaintiff could not recover if she ran out suddenly from the sidewalk without looking to see if a car was coming, and reached the track wdien the car was not over five feet from her, and also to its refusal to charge that if the defendant’s motorman was exercising that degree of care which a person of ordinary prudence would have exercised, under the circumstances, at the place in question, and stopped his car as quickly as possible after he saw the child in front of it, the verdict must be for the defendant. Morris <& Whitehouse, for the appellant. Coudert Brothers and Charles J. Patterson, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This action is to recover damages for injuries sustained by the plaintiff, a child, aged eight years, from being run down by the defendant’s trolley car. We think that the facts bring the action within the case of Stone v. Dry Dock, etc., Railroad Co. (115 N. Y. 104), and that the motion to dismiss the complaint was, therefore, properly denied. The opinion in that case clearly points out the difference between the care to be taken in crossing a steam railroad and in crossing a street railroad, and the distinction between a case like the present and that passed on in Wendell v. N. Y. C. & H. R. R. R. Co. (91 N. Y. 421). It is also an authority that the question whether the plaintiff was non sui juris or not was properly one for the jury. The exception to the court’s refusal to charge w*as not well taken. The request excluded consideration of the conduct of the motorman prior to the occurrence of the accident. If it was not intended to so limit it, then the question was already covered by the previous charge, and it -was unnecessary to repeat it. The exception to the refusal to charge is also without foundation. The request was subject to the same criticism as made on the request heretofore mentioned, and also to the further objection that it excluded consideration of the question whether the plaintiff was non sui juris or not. We are asked' to set aside the verdict on the further ground that it was against the weight of evidence and the damages excessive. The evidence to support the plaintiff’s claim was almost exclusively that of one Emerich, who testified that he was on the track and in front of the car of the defendant; that the motorman rang the bell for the witness to turn out of the track, but that he failed to turn out until he found a place where the pavement was good; that the motorman, angry at the witness’ delay, as the car shot past the "wagon, turned towards him and shook his fist; that at this time he ran down the plaintiff. On the defendant’s part the motorman testified that no such occurrence took place, and that the witness Emerich with his wagon was not at the scene of the accident. In this he was corroborated by a policeman riding on the car. Several other witnesses, passengers on the car, testified that they did not witness the occurrence which Emerich relates. Their testimony does not absolutely deny its occurrence. Emerich seems to Be a reputable man, carrying on business as a manufacturer of dumb waiters and elevators in the city of Brooklyn and gave his address and place of business. If his story is incorrect his testimony is a piece of deliberate perjury made out of whole cloth. In such a case it was for the jury, who saw the witnesses and observed their manner and demeanor on the stand, to say which of the witnesses they believed told the truth. The plaintiff had her face cut open, which has resulted in a scar which will permanently disfigure her. Another result of that injury is that she will be always unable to masticate her food on that side of her mouth. Besides that her collar bone and four ribs were broken, and there was an injury to the pelvis. For such injuries we do not think this verdict can be termed excessive. The judgment and order denying the motion for a new trial appealed from should be affirmed, with costs. All concurred. Judgment and order affirmed, with costs.