Moebus v. . Herrmann ( 1888 )

The jury have found that the child was not careless and that the defendant's driver was negligent. If there is evidence to support these findings the only circumstance which distinguishes this case from Murphy v. Orr (96 N.Y. 14), is that the child whose conduct is now in question, was not on the cross-walk. A person on foot has, however, a right to cross the street where he pleases, and the inquiry is the same, whether, under the circumstances in any given case he does so with due caution. So with the driver. He was bound to be watchful at all points, elsewhere as well as at the cross-walk, and had he been so the jury might well have said from the evidence, he would have seen the child in season to have prevented the collision. He was sitting on a high seat, the view was unobstructed, and from it he could see "all over the street," but he testifies that he did not see the child "until the shaft knocked him down." It is probable he did not see him at all, for the evidence from other witnesses is that he drove on, not checking his horse nor heeding the cries of the bystanders until, after going seventy-five feet or thereabouts, he was forcibly stopped by a person who had seen the occurrence. It also appears that during the intervening time the horse was moving at a slow trot, the driver having the reins in his left hand, while with his head turned to the right,i.e., away from the child, he was looking backward and conversing with a fellow servant who was driving a similar wagon belonging to the defendant. The grade was ascending and it is in evidence that the wagon could have been stopped before going the length of the horse and the child saved before the wheels reached him. The driver either saw the child and recklessly drove over him, or failed to see him because of inattention. His own statement to one who said "for God's sake how did you come to run over the child," was, "I could not help it because I could not see him," permits the latter as the more charitable inference, but he was none the less the cause of the accident. The child was less than seven years old and therefore had not reached an age at which infants are generally supposed to be of full discretion or capable of crime of which laches and neglect are but degrees. (Penal Code, §§ 18, 718, sub. 1.) But the case was given to the jury as one in which he was bound to exercise care in attempting to cross, and to look and see if he could do so safely, the court saying, "the rule of vigilance applies to children as well as to adults, `but' that a child of immature years, whilst bound to exercise care, is held to no higher degree of forethought than you could expect of its age;" and again, "if you say the child did what an ordinarily careful child would have done, then it is not negligence;" and at the request of defendant's counsel he charged, that it was as much the duty of the boy to look out for vehicles while crossing the street, as it was for the driver to see that he did not come in contact with any one;" also that "if the boy failed to adopt the means known to him to be effective in protecting him against danger, and was injured thereby, the plaintiff cannot recover." No exception was taken to the charge, nor is it open to any. The propositions on which the case was made to turn, were formulated with due regard to the preservation of every legal right of the defendant. (Thurber v. Harlem B.M. F.R.R. Co.,60 N.Y. 335; Byrne v. N.Y.C. R.R. Co., 83 id. 620; Dowling v. N.Y.C., etc., R.R. Co., 90 id. 670.) Portions of the appellant's argument, however, rest upon testimony of the child, that while playing in the streets and crossing them, he "would, if he saw a wagon coming, wait until it passed." The learned counsel for the defendant then said, "You did not think about looking this day when you got hurt, did you?" and the witness replied, "No, sir." "You had always before that?" "Yes, sir." These were leading questions, and how far they elicited the conscious experience of a child not then seven years of age, was for the jury. But being asked, "How were you looking?" answered, "Straight ahead." There is other evidence to the same effect.

The court, therefore, did not err in refusing to charge the jury at the defendant's request, propositions which assumed as their foundation that the child used no vigilance and did not look. The duty imposed upon a wayfarer at the crossing of a street by the track of a railroad to look both ways, does not as matter of law attach to such person when about to cross from one side to the other of a city street. The degree of caution he must exercise will be affected by the situation and surrounding circumstances. In the former case there is obvious and constantly impending danger not easily or likely to be under the control of the engineer; in the latter the vehicles are managed without difficulty and injuries are infrequent. The distinction is recognized in Wendell v. N.Y.C. H.R.R.R. Co. (91 N.Y. 420), cited by the appellant, and the observations of the learned judge who delivered the opinion in that case, show that the traveler is not subject to the same rules of conduct in these various situations.

The appellant fails to show error and the judgment appealed from should be affirmed.

All concur.

Judgment affirmed.