Louis Feinstein, an Infant, by Benjamin Feinstein, His Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

Louis Feinstein, an Infant, by Benjamin Feinstein, His Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Second Department, January 26, 1909. Railroad—negligence — injury to infant crossing street. Action for negligence. The plaintiff, a child seven years of age while attempting to cross a street in the. middle of a block, was struck by the fender of a street car. On all the evidence, held, that a judgment for th§ plaintiff should be; reversed. Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury, Francis R. Stoddard, Jr., for the appellant. Oswald N. Jacoby, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The motion to dismiss at the close should have been granted as no negligence on the part of the defendant was shown. The plaintiff was about 7 years old. He testified that he walked across the street and was hit by the fender, and again that he ran across. It was in the middle of the block. The motorman testified that he saw the plaintiff standing at the curb, and that he ran across; that the car was about 20 feet from the place where the plaintiff was hit when he started to run; that he immediately' put on his brakes, and brought the car to a stand about 10 feet after the fender hit the plaintiff. A passenger corroborated him. The car was not going at an excessive speed. The plaintiff was not seriously hurt. The judgment should be reversed. Woodward, Jerks, Rich and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.