Patrick Fenton, as Administrator, etc., Respondent, v. The Second Avenue Railroad Company, Appellant

Patrick Fenton, as Administrator, etc., Respondent, v. The Second Avenue Railroad Company, Appellant. The cars of street railways have a preference in the streets, and while they must he managed with care so as not to negligently injure persons in the streets, pedestrians must use reasonable caution to keep out of their way. (Submitted February 27, 1891; decided March 10, 1891.) Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made February 14, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict. The following is the opinion in full: “ This action was brought by the plaintiff to recover damages for the death of his son, the intestate, alleged to have been caused by the carelessness of the defendant, on the 7th day of April, 1888. The material facts are as follows: The defendant operated its horse- railroad through Second avenue in the city of New York. Between eleven and twelve o’clock on the day named one of the defendant’s cars was coming up the avenue, and while it was crossing East Twenty-fifth street the intestate started from' the north-west corner of the street, apparently to run diagonally across to the south-east corner, and when he reached the westerly rail of the track upon which the car was running, he stumbled and fell on the track in front of the horses, and a portion of the car passed over him, and he was so injured that he died. He was an intelligent, strong, healthy lad, nearly ten years old, and perfectly familiar with the locality, the railroad and its operation. There "was nothing to obstruct his view of the approaching car, which was moving at the usual rate of speed, the horses attached thereto trotting, and the only carelessness alleged against the defendant is that the driver did not stop the car in time to save the life of the intestate. Two witnesses were called as to the accident on the part of the plaintiff. The first, Bedles, who at the time was standing near the north-east corner of the street, testified that he saw the car coming, and perceiving the danger to the boy, hallooed to the car; that he saw the boy running, stumble and fall from ten to fifteen feet in front of the horses, and that he had hallooed at the time the boy fell; that there were two drivers on the front platform of the car; that they were looking up street and did not apply the brake until the car struck the boy. The other witness, Barron, was at the southwest corner, and testified that he saw the boy look up and down the avenue and start on a run to cross it; that he saw him stumble and fall at the west rail of the track; that he attempted to get up, and before he could do so was struck by the. horses, which were about twenty, feet awray from him when lie fell; that he heard the hallooing by Bedles, and that the brake was not applied until the horses struck the boy. “ On the part of the defendant the two drivers who were on' the front platform of the car were called, one of whom was a driver' of nine years’ experience, who was there to aid or instruct the other driver who had first commenced to drive on that day, and they testified that two passengers were with them on the platform; that they did not hear Bedles halloo and did not see the boy until he had fallen in front of the horses, and that then they immediately applied the brake and arrested the motion of the car as soon as possible. McCandless, wlio was a passenger on the front platform, testified that he saw the boy run to cross the track and saw him stumble and fall about ten feet in front of the horses, and that the drivers immediately applied the brake and arrested the movement of the car as soon as possible. Dunham, the other passenger upon the front platform, testified that he saw the boy running from the Avest side of the street and saw him fall on the track and that the drivers applied the brake as quick as they could and that he thought the boy fell about eight feet in front of the horses. It does not appear that either of these passengers heard Bedles halloo. “ If it be assumed that the boy fell twenty feet in front of the horses, as testified to by one of plaintiff’s witnesses, then the horses going at the usual rate of speed, assuming it to be six miles an hour, would have reached him in about íavo seconds, and that was all the time the drivers had to see the peril, apply the brake and arrest the motion of the car before reaching him, and there is no evidence that, by the exercise of all the vigilance that the law requires of drivers under such circumstances they could, after the boy had fallen upon the track, have arrested the car in time to save 1dm from injury. If it be assumed that they saw him as he approached the track they had the same reason to suppose that he Avould get across that he had, and he probably would have crossed in front of the horses in safety if he had not fallen. ¡No negligence can be attributed to the drivers because they did not apply the brake before the boy fell, because then, for the first time, the peril commenced and became apparent. “ This accident did not happen at a street crossing, but between the upper and lower crossings of the street, and hence the drivers did not have the same reason to expect any one there as at a street crossing. “ There was nothing requiring this boy to run across the track at this particular place and time. If he had walked he probably would not have fallen, and if he had waited tAvo or three seconds the car would have passed and he could then have gone over the street in safety. Street railway cars have a preference in the streets and AArhile they must be managed Avith care so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way. The unfortunate death of this boy was due to his own carelessness, or it was a pure accident, and in either event the defendant cannot be held responsible for it. “ The judgment should be reversed and a new trial granted, costs to abide the event. ” Augustus 8. Hutchins for appellant. James M. Iryddy for respondent. [MAJORITY — Eabl, J.,] Eabl, J., reads for reversal and new trial. All concur. Judgment reversed.