Costello v. Third Ave. Railroad

49 N.Y.S. 868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1898
• Status: Published

Opinions

O’BRIEN, J.

The sole question for our consideration is as to-whether or not the trial judge erred in dismissing the complaint upon the ground that the plaintiff was guilty of contributory negligence. In disposing of the motion to dismiss, the learned judge summarized! the facts by saying:

“The boy, while running diagonally across the street, with nothing to obstruct his view, was struck by the left side of the front of the car, and thrown under the left side of the car. This shows conclusively that he had not sufficient time to head off the car, and that in making the attempt he was guilty of contributory, negligence.”

This summary, which, is exact, seems to us to sustain the ruling made; but the earnest argument made against such a. conclusion, and the sympathy which is excited from so serious an accident to a boy of tender years, and the different inferences which it is insisted can be drawn from the facts, have required an examination of the question, with a view to determining whether, upon any inference to be fairly deduced, the little boy can be absolved from the charge of •contributory negligence, as matter of law.

The rule is that only in cases where the evidence shows that the negligence of the plaintiff contributed to the injury, as a proximate cause of it, is the court justified in withholding that question from the jury. In determining whether such negligence here existed, we must apply another rule, viz. that a child is called upon to exercise only that degree of care required from one of its age, and it is only the absence of such care that will be regarded as contributory negligence. What would be negligence, therefore, in an adult, is not, as matter of law, negligence in a child. But in determining in a given case whether such negligence is present or absent, where injuries to a child are involved, its age must be considered, as well as whether its own act was the proximate, or only the remote, cause of the injury. Although here the child was but eight years of age, it is conceded that he was a bright boy, capable of caring for himself while on the street, and in crossing it. His tender age would forbid our expecting any great degree of care and prudence, yet, being sui juris, it must be held that he was bound to exercise some care, commensurate with his age and intelligence. Applying these rules to the facts appearing, we could only absolve the boy from the charge of contributory negligence by assuming that his running upon the track was in no sense one of the proximate causes leading to the injury, or that he was not bound to observe any care in crossing an avenue which was constantly traversed by cable cars, or that he was in no way negligent, on such an avenue, in starting in the middle of the block on a run, with nothing to prevent his observing the car moving north at a slow rate of speed, with a wagon in front of it, and, seeing the car, never abating his speed in his journey across the avenue, thus taking all chances or risks of crossing in safety. It will be observed that the witnesses all agree that the boy was running, and did not stop while crossing the avenue, and we have no evidence to show whether he looked for or at the approaching car, or in what direction he was looking; nor is there any proof that he did anything in the way of care or precaution, except to run into collision with the car. He did not stop, or look or listen for its approach, and we are left in doubt as to whether he really saw the car; for, if he had observed- it, he surely would have known of its close proximity to him, and the danger which he would thereby run in crossing the track. The only inference to be drawn is that he ran heedlessly, without reference to the position of. the car, across the avenue. That he stepped on the track at a time when it was impossible for him to get across and escape the car, is conclusively shown; the evidence being that he was struck by the left-hand corner of the car just as he placed his foot on the first rail. Hence the conclusion is irresistible that he was himself a contributing cause of, and that he created the situation from which his injuries flowed. Upon no inference, therefore, to be drawn from the facts, can we relieve the little boy from the charge of contributory negligence. True, as already stated, he was but eight years of age, and not chargeable with any great degree of intelligence or care; but, however we may minimize these, we cannot absolve him from blame. He was struck by an up-bound car in the middle of the block, not as he was leaving the track, but, as said, just as he was entering upon it; the fact being that he ran right into the car, and was struck just as he attempted to place his little feet on the first rail. Assuming, as we must, that there was sufficient to show that the motorman was negligent in not looking and seeing the boy, yet, if he had seen him running across in the middle of the block, he could not have concluded that, with the car so close, the boy would "continue to run and attempt to cross. We think it clearly appears that, apart from the defendant’s negligence, the failure to observe the slightest care or precaution of any kind on the boy’s part contributed to the accident. The conclusion follows.that for the injuries received the little boy was chiefly blamable, and should not be allowed to recover. The only contrary inference suggested is that attempted to be drawn by the appellant, to the effect that when the boy started to run across the avenue the car was going slowly, and that when he reached the track the car suddenly increased its speed to full headway, and, therefore, that the little boy, with his small intelligence, committed merely an error of judgment in assuming that he had time to get across, which, it is insisted, he could have done had the car continued at the speed at which it was going when the boy started on his journey. And thus it is sought to bring the case within the principle laid down in Fandel v. Railroad Co., 15 App. Div. 426, 44 N. Y. Supp. 462. There the accident happened, not in the middle of the block, but at or near the north crosswalk of Ninety-Fifth street, and there was evidence to show “that this street car accelerated its speed after the woman stepped upon the track.” If this boy had reached the track, and then the car had suddenly accelerated its speed, one of the elements conspicuous in the Fandel'Case would have been present; and if, in addition, the accident had occurred at a crossing, there would be some analogy between this and the case cited. But upon the facts the two cases are entirely dissimilar. Another answer to the appellant’s suggestion is that it does not appear that the boy was calculating upon the speed of the car, but he started to run across, and continued to run, regardless of the rate at which the car was going, and, instead of the car running into him, he ran into the car. Unless, therefore, we are to hold that as to every boy who, without observing any care or precaution, is injured while crossing the tracks of a street railroad, the company is liable to compensate him for his injuries, upon the doctrine that it is an insurer, we must conclude that, upon the facts here appearing, the ruling of the trial judge in dismissing the complaint on the ground of contributory negligence was right.

The judgment should be affirmed, with costs.

VAN BRUNT, P. J., and McLAUGHLIN, J., concur.