Victor Kitay, as Administrator, etc., of Louis Kitay, Deceased, Respondent, v. The Brooklyn, Queens County and Suburban Railroad Company, Appellant

Victor Kitay, as Administrator, etc., of Louis Kitay, Deceased, Respondent, v. The Brooklyn, Queens County and Suburban Railroad Company, Appellant. Negligence —a child falling v/pan a street railroad trach eighty feet in front of a trolley car —failure of the motorman to see him —• neglect of the child to loch before attempting to cross the track — opinion as to the speed of a car. In an action brought to recover damages for the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, testimony to the effect that the deceased, a boy ten years of age, while attempting, at dusk, to cross a street near the middle of a block, fell upon his face on the track of a street-railroad, eighty feet in advance of one of the defendant’s trolley cars, which was moving at the rate of about ten or twelve miles an hour, and that, although it was light enough to see a distance of three blocks, the motorman did not see him in time to avoid running over him, is sufficient to warrant a recovery in favor of the plaintiff. In such a case the fact that the plaintiff failed to prove that the deceased looked before attempting to cross the track is immaterial, in view of the distance of the car from him. A witness who testifies that he has many times ridden on a car and timed it to see how fast it was going, is competent to give an opinion as to the speed at which a car was going. Appeal by the defendant, The Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover damages resulting from the death 'of the plaintiff’s intestate, which was. caused by the alleged negligence' of the defendant. • Charles A. Collin, for the appellant. Harold Nathan [David Leventritt with him on the brief], for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: The plaintiff’s intestate, Louis Kitay, a lad ten years of age, was run over and killed by one of the defendant’s trolley cars on Metropolitan avenue, a short distance west of Roebling street, in the city of Brooklyn, at dusk on the evening of the 9th day of October, 1896. The boy was in company with his brother, who was a year or two older, and he was endeavoring to cross the street, not at a crosswalk, but near the middle of the block. According to the evidence in behalf of the defendant, he darted out on to the track suddenly from behind some trucks, which were standing near the sidewalk, and came in front of the car so unexpectedly and in such proximity to it that, although its speed was only five or six miles an hour, the motorman, in spite of his utmost exertions, was unable to stop it before running ■ over the boy. The only witness who actually saw the whole of the accident was the older brother, and he testified upon cross-examination that he did not know whether the deceased lad saw the car when it came along, adding, “ I did not see him look.” Upon this proof the learned counsel for the appellant argues, with much earnestness, that the plaintiff failed to establish either want of contributory negligence on the part of the person injured or negligence on the part of the defendant. The evidence introduced by the plaintiff, however, presents a different picture. According to the testimony of the surviving brother, the deceased boy started to cross Metropolitan avenue a little way ahead of him, and, as he reached the track along which the defendant’s car was coming, he fell upon the street, face forward. At that time, says this witness, the car was four houses away. Under these circumstances, if they believed the testimony of the surviving brother, the jury might well acquit the deceased of any negligence in attempting to cross the track as he did ; for it cannot be held as matter of law. that he "would have been at fault, even if he had looked and seen the car, for endeavoring to cross in front of it when it was eighty feet away, which would be about the distance represented by the combined width of four houses. The failure of the plaintiff, therefore, to prove whether he actually looked or not cannot be deemed an omission fatal to the recovery. As to the negligence of the defendant, this is predicated chiefly upon the speed of the car, which was estimated by a witness named Bernard Jasper to be ten or twelve miles an hour, while all the witnesses for the defendant estimated the rate at which the car was moving at the time of the accident to be only five or six miles an hour. The testimony of Jasper, however, permitted the jury to find that the car was moving at the higher rate of speed, unless the appellant is right in insisting that he was incompetent to testify on this point. I am inclined to think that the qualification of the witness to testify to an opinion as to the rate at which the car was traveling was not proved upon his direct examination ; but the deficiency was supplied when he came to be cross-examined, and stated, in response to questions by counsel for the defendant, that he had many times ridden on a car and timed it in order to see how fast it was going. Assuming the truth of the evidence on behalf of the plaintiff in this case, there was no difficulty in finding that the defendant’s motorman was negligent in the management of the car, for, whether it was going fast or slow, he ought to have been sufficiently on the lookout to see a prostrate body on the track eighty feet in front of him in time to stop his car before running over it. It is to be observed that ■ there is testimony to the effect that it was light enough at the time of the accident to see a distance of three blocks. Upon the question of speed it is also worthy of notice that the. motorman refused to swear that the speed was not more than six miles an hour. - This case involves no novel questions ' of law, and, indeed, no question which we have not repeatedly passed upon in this class/ of actions; and it is only by reason of the earnestness with which the appeal was argued in behalf of the appellant that we have devoted so much space to a discussion of the facts. The judgment and order must be affirmed, with costs. .Judgment and order unanimously affirmed, with costs.