Finkelstein v. Brooklyn Heights Railroad , 64 N.Y.S. 915 ( 1900 )

Hirschberg, J.:

The -record does not present the facts as clearly as is desirable, there being some confusion in the evidence as to the exact conditions under which the accident- occurred. In the case of a nonsuit we ■must, adopt those inferences which- are most favorable to the plaintiff. (Rehberg v. Mayor, 91 N. Y. 137, 141; Weil v. D. D., E. B. & B. R. R. Co., 119 id. 147, 152; Ladd v. Insurance Co., 147 id. 478, 482; Costello v. Third Avenue R. R. Co., 161 id. 317, 320.)

The plaintiff, a child between seven and eight years of age, was-seriously injured by one of the defendant’s cars while lie was crossing Flushing avenue in- the evening. The- hour was between six. and seven o’clock, and it was getting dark, but one witness testified that she could see a distance of two and a. half blocks. At the time 1 the plaintiff started to cross the street, possibly at the .time he reached the track, there is proof - that the car was at least fifty-five feet distant. The plaintiff was struck before he actually got on the railroad track, but he was struck by the fender of the car, .at the side but near the, front, and the jury would have been fully justified in concluding that the accident was directly attributable to the negligence of the motorman. The par was running very fast,, considerably beyond' the -usual.rate of speed; the motorman did not look-in the direction the car. was going, but was- looking at. the sidewalk toward . which the plaintiff was proceeding; no bell or warning of any kind was sounded or given; the car did not slacken.its.speed.a.t;all, but proceeded for at least two blocks before it stopped, and then continued to its destination. It certainly cannot be said as matter of law that the defendant’s negligence was not sufficiently established.

As to the plaintiff’s contributory negligence, much evidently ■depends upon whether or not he is to be regarded as sui juris. That was a question for the jury. If he was non sui juris he could not be chargeable with negligence of his own under the circumstances of this case, nor is it a matter of law that he could be if $ui juris. (Costello v. Third Avenue R. R. Co., supra.) Assuming that he ’was answerable for his own negligence,.he.would only be held to the exercise of care commensurate with his age, and it would be for the jury to apply the standard when they had determined the facts. So, too, under the circumstances disclosed, the question of the negligence of the parents of the plaintiff, in the event that he is held to be non sui juris, is one of fact and not of law.

The judgment and order should be reversed.

All concurred.

Jndgment and order reversed and new trial granted, costs to abide the event.