Flynn v. Metropolitan Street Railway Co.

Babbett, J.:

The question in this case is whether the driver of the car was guilty of negligence; that is, whether there was anything to go to the jury on that head. Upon the question of contributory negligence, we think the case might have gone to the jury. It cannot be said, as matter of law, that the child failed to exercise that degree of care which might reasonably have been expected of him.

As to the main question, to wit, the driver’s alleged negligence,, the claim is that he made no effort to stop the car; that while he was turning his horses to the left with one hand he did not at the same time apply the brake with the other hand. It is clear that if the driver had applied the brake and had not turned his horses to one side, the child would have been run over. The situation was critical and the danger imminent. The horses were almost upon the child. There was the primary and immediate danger. What the situation imperatively demanded was that the driver should lend his energies to the swerving of the horses. He met that claim upon him with promptness and vigor. But it is said that he should have done more; that in the midst of the excitement, and on the spur of the moment, he should have perceived the possibility of a later danger and provided against it. There was no evidence tending to show that a driver, under such circumstances, could swerve his horses swiftly with one hand and at the same moment adequately apply the brake with the other. Assuming, however, that the jury might have inferred that this was feasible, still the appellant’s contention would extend the rule of negligence into impossible channels. What was required of the driver was the reasonable care and diligence of a person endowed with ordinary capacity and fairly equipped for the particular service in question. What the appellant calls for is not ordinary care and prudence, but extraordinary capacity and foresight. The driver should, in this view, possess a mind capable of thinking coolly and deliberately yet promptly in the midst of excitement and danger. And this great and unusual power should be coupled with the physical capacity to perform simultaneously two distinct functions — each of which but for this capacity might well require the use of both hands. What is that but saying that unless a man possesses the highest attributes of mind and body, and exercises these attributes in the highest degree, a jury is authorized to find him guilty of negligence. We cannot concur in this extreme view. Negligence could not have been justly inferred from the conceded facts of this case. The utmost that could have been inferred was an error of judgment, namely, the possibility that the child might have been saved by the union of thought and action upon the double function. The rule is that where there is so little evidence of negligence that no reasonable man could find from it the fact of negligence a non-suit should be directed. “ Negligence,” as was said in Sutton v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 243), “ is ordinarily a question for the jury, but only when the facts would authorize a jury to infer it.”

We think negligence could not here have been inferred from the failure to apply the brake instantaneously with the performance of the primary and imminent duty. That duty was at all hazards to swerve the horses and save the child. The imminence of the immediate danger from the horses overshadowed all else. It was concentration upon the one crucial object which constituted care and prudence. The danger lay in diversion or deviation.

It is said, however, that the jury might have found that the driver could have applied the brake and slowed down before the horses’ heads came so near the boy; and that if this had been done the accident might have been avoided with or without the sudden swerving of the horses’ heads. The difficulty with this position is that there was not a particle of evidence upon which the jury could have made such a finding or from which they could draw such an inference. Indeed, there was but one witness — Thomas Gr. Kennedy — who said that the boy was as much as six feet in front of the horses when he went upon the west track; and that witness merely “ guessed ” at the distance. This is his testimony : “ I guess the car was about six or eight feet from him at the time he started to cross; the horses were going at the usual gait; something like six miles an hour.

“ Q. And with the horses going at the usual gait, six miles an hour, this boy starts in six or eight feet in front to cross over, and the driver, to prevent the horses from running him down, had to swerve them to one side ? A. To one side. The side of the ear nearest the west side of the avenue hit him.”

All the other witnesses called by the plaintiff put the distance at but between two and three feet. Mary McAuliffe says : “ I would put it about two or three feet in front. It was so near that the dri/oer had to swerve the horses’ heads so that they would not hit him.”

William J". Hickey says it was about the width of the car’s platform, which the foreman of the jury said was a couple of inches, over two feet. Hickey then testified as follows: “ The boy goes in front of the horses about two feet two inches from them heads, although this stone cart is coming along on the opposite side, right close to the track, pretty close to the track. Q. And the horses miss him because the driver swerves to the east, but the dashboard strikes him and knocks him down under the cart ? A. Yes, sir.”

The last witness of all, Thomas Tregoning, made this still clearer. He testified as follows: “ The boy went so near in front of the horses’ heads that the driver, to prevent the horses’ heads from hitting him, had to swerve the horses to the east, and that brought him away from the brake which is on the right — on the west. Q. So that he couldn’t attend to both at the same time, and he took the horses instead of the brake as the quickest way to prevent the accident — that is the way it looked, didn’t it? A. Yes, sir.”

This was substantially all the testimony upon the subject. Surely from that testimony no jury could possibly have found or inferred that the use of the brake alone might have saved the boy. This testimony also accentuates the extreme difficulty of the situation, and shows most conclusively that the swerving of the horses was the urgent requirement of the moment. The driver’s act in doing what he did must indeed have been almost involuntary. It was the one thing which any driver possessed of the least presence of mind would have done. Had the driver attempted to do more and failed, there would have been greater plausibility in attributing such failure to his negligence than there is in the present charge. For then it might with some show of reason be asserted that with the child almost under his horses’ heads, the driver should have concentrated his efforts upon the one function which the imminence of the danger called into immediate and exclusive play.

We think, therefore, that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concurred ; O’Brien and Williams, JJ., dissented.