O’Brien, J.:
The action was brought to recover for personal injuries sustained by the plaintiff, a boy between • twelve and thirteen years' of age while he was. crossing from the eást- to the west side of Columbus avenue between Eighty-ninth and Ninetieth streets, on the night of [161]*161December 11,1897, at about eight o’clock, which injuries, alleged to havé been caused by the negligence of the defendant in the operation of one of its south-bound cars, resulted in the loss of the plaintiff’s leg. Upon the trial, at the close of plaintiff’s case, a motion was made to dismiss the complaint which was granted, and to determine upon this appeal the correctness of the ruling made, a review of the testimony is necessary.
The plaintiff testified that he started to cross from the east to the west side of the avenue when he was about twenty-five feet south of the Ninetieth street crossing, and walked out as far as one of the elevated railroad posts and stopped and looked up and down ; that he saw a car with a light on it coming very fast down town, then at the middle of the block above, and also saw a north-bound car a block and a half below; that he then continued his way walking across the street, looking down town ■—• the reason that he didn’t look up being that he thought he had plenty of time to get across ahead of the down-town car, but if he had looked up, could have gotten out of the way; that the down-town car struck him just as he was stepping off the down-town track, and threw him, and the car caught him under the platform and dragged him, before running over him, about one hundred feet; that lie did not hear any bell; that he called out for help while he was being dragged along.
Louise Schaubach said she was near a millinery store (twentydive feet from Ninetieth street, as shown by the map in evidence), and saw the boy walking across the street towards her, but did not see him stop at any time; that he was looking up and down to see if there was any car, and that there was a car midway between Ninety-first and Ninetieth streets coming down very fast, but there was no other car; that no signal was given, and the car within six or eight seconds struck the boy, dragged him and then ran over him. Map-tin Hesserinan, a'clerk in a grocery store, testified that while at work he heard a cry and turned around, and the car had stopped ; that the boy was picked up right in back of it, the car having gone entirely over him ; that the car stopped just across from No. 607, which was fifty-four to sixty feet from Eighty-ninth street.
Oarll Boney, a companion of the plaintiff, testified that he was standing on the northwest corner of Ninetieth street, and witnessed the accident; that he saw the boy crossing the track and the [162]*162car about one-half block above poming down ; that when near the first elevated pillar from' Ninetieth street the plaintiff looked up and saw tile car coming from above, and then was looking down towards Eighty-ninth street, and the car knocked him down and dragged him to opposite Scholoeses, No;. 607, and the boy was calling for help till the car stopped; that he had gone as far as the West rail and was struck by the left side of tljie bar underneath the platform in front of the wheels; that no bell was rung and that it was a rainy, misty night. John E. Lynch testified that the car stopped at the second pillar from north of Eiglity-ninth street (fifty feet north of Eighty-ninth street, as shown on the map). G. H. Willis testified that he was on the corner of Eighty-ninth street and heard a shout, and the car had then stopped; that the car was north of the second post from Eighty-ninth street. Edward Murray testified that on the-night of the accident he was in | his store, and heard shouting and ran to the door, and the car had stopped near the second post from Eighty-ninth street. Rose Riedihuller testified that the car stopped south of the second elevated pillar. Albert Shumway testified that he was standing on Columbus avenue, at No. 606 (about seventy-five feet .from Eighty-ninth street), and heard shouting, each time getting nearer, and the car stopped just opposite to where he Was.
The gripman of the car, A. E.j Miller,-testified that he was going at the speed of the cable, which he has since learned is from six to eight miles an hour ; that about fifty feet south of N inetieth street he passed another car going north, and just then the boy shot out from behind the north-bound car;; that he was ringing his bell as he passed the car, and continued to| do so when' lie' saw the boy, ahd stopped the car as soon as possible; that the left side.of the car struck the boy, but he was not ¡dragged any distance, for the car stopped about 100 to 125 feet north of Eighty-ninth street; that the block is about 200' feet long ; tljat the boy lay about eight feet in the rear of the car, which was thirty feet long; that it was a rainy night; that he had been on the toad a month; and was working. as •an extra man, having spent twenty-one days learning.
Anothér gripman testified-that a car such as the one' in question, going at that rate and oh such) a night, could be stopped within twenty-five to thirty-five feet, j An engiiieér testified that • it'-w^ thirty-five feet from the pillar pqiiited out to him by the plaintiff to [163]*163the Ninetieth street crossing, and from that pillar to the middle of the block above 176 feet; and from the pillar to the point where it was stated the boy was picked up, 99 feet.
Upon this evidence the appellant insists that there , were two theories, upon either of which the defendant’s liability could be predicated — the first being the negligence of the gripman in permitting the car to strike and throw the boy, and the second that, even if the plaintiff’s own negligence exposed him to the risk of injury, the gripman, after he became aware of the plaintiff’s danger, was under the legal obligation to use care in avoiding injury to him. Were the first alone involved we should be inclined to the view reached by the learned trial judge, that the plaintiff could not recover for the reason that, apart from defendant’s negligence, the boy’s negligence contributed to bring about the accident. Upon the other theory, however, as to whether the obligation which rested upon the defendant to use reasonable care to avoid injuring the boy when he was placed in a position of danger was discharged, we think there was a sufficient conflict of evidence to make it a question for the jury.
The car in question had no fender in front,, but it was furnished with a fender upon the platform, placed just before the front wheels, against or upon which, the inference can fairly be drawn, the boy rested for a period of time while being carried a distance which is variously estimated by the witnesses. The question presented upon this appeal, which is dependent, to a great extent, upon the distance traversed by the car after the boy was struck, is whether the trial judge was right in holding, as matter of law, that the gripman discharged the obligation resting upon him towards the boy while in a position of danger.
If - the gripman’s testimony stood alone, there might be reason for answering this question affirmatively; but it is to be remembered that he was called for the purpose of testifying for the plaintiff as to the speed of the cable, and was, on all other matters, used as a witness for the defense, and the plaintiff was not, therefore, concluded by his testimony.
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O’Brien, J.:
The action was brought to recover for personal injuries sustained by the plaintiff, a boy between • twelve and thirteen years' of age while he was. crossing from the eást- to the west side of Columbus avenue between Eighty-ninth and Ninetieth streets, on the night of [161]*161December 11,1897, at about eight o’clock, which injuries, alleged to havé been caused by the negligence of the defendant in the operation of one of its south-bound cars, resulted in the loss of the plaintiff’s leg. Upon the trial, at the close of plaintiff’s case, a motion was made to dismiss the complaint which was granted, and to determine upon this appeal the correctness of the ruling made, a review of the testimony is necessary.
The plaintiff testified that he started to cross from the east to the west side of the avenue when he was about twenty-five feet south of the Ninetieth street crossing, and walked out as far as one of the elevated railroad posts and stopped and looked up and down ; that he saw a car with a light on it coming very fast down town, then at the middle of the block above, and also saw a north-bound car a block and a half below; that he then continued his way walking across the street, looking down town ■—• the reason that he didn’t look up being that he thought he had plenty of time to get across ahead of the down-town car, but if he had looked up, could have gotten out of the way; that the down-town car struck him just as he was stepping off the down-town track, and threw him, and the car caught him under the platform and dragged him, before running over him, about one hundred feet; that lie did not hear any bell; that he called out for help while he was being dragged along.
Louise Schaubach said she was near a millinery store (twentydive feet from Ninetieth street, as shown by the map in evidence), and saw the boy walking across the street towards her, but did not see him stop at any time; that he was looking up and down to see if there was any car, and that there was a car midway between Ninety-first and Ninetieth streets coming down very fast, but there was no other car; that no signal was given, and the car within six or eight seconds struck the boy, dragged him and then ran over him. Map-tin Hesserinan, a'clerk in a grocery store, testified that while at work he heard a cry and turned around, and the car had stopped ; that the boy was picked up right in back of it, the car having gone entirely over him ; that the car stopped just across from No. 607, which was fifty-four to sixty feet from Eighty-ninth street.
Oarll Boney, a companion of the plaintiff, testified that he was standing on the northwest corner of Ninetieth street, and witnessed the accident; that he saw the boy crossing the track and the [162]*162car about one-half block above poming down ; that when near the first elevated pillar from' Ninetieth street the plaintiff looked up and saw tile car coming from above, and then was looking down towards Eighty-ninth street, and the car knocked him down and dragged him to opposite Scholoeses, No;. 607, and the boy was calling for help till the car stopped; that he had gone as far as the West rail and was struck by the left side of tljie bar underneath the platform in front of the wheels; that no bell was rung and that it was a rainy, misty night. John E. Lynch testified that the car stopped at the second pillar from north of Eiglity-ninth street (fifty feet north of Eighty-ninth street, as shown on the map). G. H. Willis testified that he was on the corner of Eighty-ninth street and heard a shout, and the car had then stopped; that the car was north of the second post from Eighty-ninth street. Edward Murray testified that on the-night of the accident he was in | his store, and heard shouting and ran to the door, and the car had stopped near the second post from Eighty-ninth street. Rose Riedihuller testified that the car stopped south of the second elevated pillar. Albert Shumway testified that he was standing on Columbus avenue, at No. 606 (about seventy-five feet .from Eighty-ninth street), and heard shouting, each time getting nearer, and the car stopped just opposite to where he Was.
The gripman of the car, A. E.j Miller,-testified that he was going at the speed of the cable, which he has since learned is from six to eight miles an hour ; that about fifty feet south of N inetieth street he passed another car going north, and just then the boy shot out from behind the north-bound car;; that he was ringing his bell as he passed the car, and continued to| do so when' lie' saw the boy, ahd stopped the car as soon as possible; that the left side.of the car struck the boy, but he was not ¡dragged any distance, for the car stopped about 100 to 125 feet north of Eighty-ninth street; that the block is about 200' feet long ; tljat the boy lay about eight feet in the rear of the car, which was thirty feet long; that it was a rainy night; that he had been on the toad a month; and was working. as •an extra man, having spent twenty-one days learning.
Anothér gripman testified-that a car such as the one' in question, going at that rate and oh such) a night, could be stopped within twenty-five to thirty-five feet, j An engiiieér testified that • it'-w^ thirty-five feet from the pillar pqiiited out to him by the plaintiff to [163]*163the Ninetieth street crossing, and from that pillar to the middle of the block above 176 feet; and from the pillar to the point where it was stated the boy was picked up, 99 feet.
Upon this evidence the appellant insists that there , were two theories, upon either of which the defendant’s liability could be predicated — the first being the negligence of the gripman in permitting the car to strike and throw the boy, and the second that, even if the plaintiff’s own negligence exposed him to the risk of injury, the gripman, after he became aware of the plaintiff’s danger, was under the legal obligation to use care in avoiding injury to him. Were the first alone involved we should be inclined to the view reached by the learned trial judge, that the plaintiff could not recover for the reason that, apart from defendant’s negligence, the boy’s negligence contributed to bring about the accident. Upon the other theory, however, as to whether the obligation which rested upon the defendant to use reasonable care to avoid injuring the boy when he was placed in a position of danger was discharged, we think there was a sufficient conflict of evidence to make it a question for the jury.
The car in question had no fender in front,, but it was furnished with a fender upon the platform, placed just before the front wheels, against or upon which, the inference can fairly be drawn, the boy rested for a period of time while being carried a distance which is variously estimated by the witnesses. The question presented upon this appeal, which is dependent, to a great extent, upon the distance traversed by the car after the boy was struck, is whether the trial judge was right in holding, as matter of law, that the gripman discharged the obligation resting upon him towards the boy while in a position of danger.
If - the gripman’s testimony stood alone, there might be reason for answering this question affirmatively; but it is to be remembered that he was called for the purpose of testifying for the plaintiff as to the speed of the cable, and was, on all other matters, used as a witness for the defense, and the plaintiff was not, therefore, concluded by his testimony. He stated that there was a north-bound car, in passing which he rung the bell, and that from behind the passing car the boy suddenly appeared and was struck when about 50 feet south of Ninetieth street, and that his car was stopped 100 [164]*164to 125 feet north of Eighty-ninth street. The blocks of the avenues are 200 feet in length, and the fair inference from this testimony is, that the car stopped almost immediately after the boy was struck. In his statements, however, as to the ringing of the bell, as to there being a north-bound car within the block, as. to the point where the boy was struck and the distance he was carried or dragged before the car was stopped, the gripmaii is contradicted as already shown by one or more witnesses. Their testimony tended to show that the car did not stop after striking the boy till it reached the second elevated post from Eighty-ninth street, a distance of 50 feet from Eighty-ninth street. Some say it stopped at a point about 35 feet south of Ninetieth street.
Although some of the witnesses, in describing how far the car Went after striking the boy, give the distance as from 100 to 150 feet, and others testify that the car was stopped very soon after the cry for help was given by the boy, it does not necessarily follow that there is here an inconsistency because it was also stated that the car had previously traversed a distance of 116 feet in but six or eight seconds.
Again, if we take the testimony of those who say the' car stopped at a distance of seventy-five feet from Eighty-ninth street and credit the gripman’s statement that the boy was struck fifty feet south of Ninetieth street, it will be seen that the car must have gone seventy-five feet after it struck the boy, although, according to the testimony of a former railroad employee who had experience as a grip-man, the ear even on such a night and in the then condition of the tracks, could have been stopped within twenty-five to thirty-five feet. If this evidence was credible — and that was for the jury, to determine in the absence of contradiction — there was no sufficient explanation given why the car should have gone, the distance testified to by the witnesses after striking the boy. The gripman of the car did not appear to have had much experience, having been in charge of a car but a week, and,! according to his own statement, he was going with a free cable at the time of the accident,.although he did not know how fast that was.
We have stated enough to show that — if we give to the plaintiff, as we must, the benefit of the most favorable inferences to be drawn from the testimony — there was a prima facie case made [165]*165out, which, in the absence of the defendant’s testimony and without explanation, should have been submitted to the jury and not determined as a matter of law. In this most favorable view of the evidence, we think that the appellant is right in his contention that the case falls within the principles laid down in the recently decided, case of Weitzman v. Nassau Electric R. R. Co. (33 App. Div. 585) wherein the learned judge writing the opinion says: “ Whatever the degree of negligence on the part of the individual in the original contact, that negligence culminated in the accident which landed him in the net of the fender. From that moment a new relation existed between the parties, and any act or omission on the part of the defendant amounting to a lack of the care demanded by the situation * * * and resulting in the death of plaintiff’s intestate, is sufficient to charge the company with negligence. It is not to be understood that the defendant becomes an insurer of every person who is caught in its fender, hut simply that it is bound to use that same degree of care which a reasonably careful and prudent man would or ought to use under the same circumstances, and this is always a question for the jury to pass upon. When the plaintiff’s intestate reached a place upon the fender of defendant’s car the defendant had notice that the child was in a dangerous position, and if it had time, and with the exercise of reasonable care could have prevented the injury or death of the child, it was its duty to do so, and a failure on its part was negligence which entitled the plaintiff to recover, and the question of whether the defendant did or did not discharge this duty should have been submitted to the jury. The rule of law is that, notwithstanding negligence upon the part of the person injured, he may recover if the railway company, after such negligence occurred, could, by the exercise of ordinary care, have discovered it in time to have avoided inflicting the injury.’ (7 Am. & Eng. Ency. of Law [2d ed.], 437.)”
We think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event..
. Yak Brunt, P. J., Barrett, Rumset and Patterson, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.