Flanagan v. People's Pass. Ry. Co.

Opinion by

Mb. Justice Mitchell,

There was only one witness of the accident, a boy of ten years, but his account gives us the main facts with entire clearness. Between seven and eight o’clock on the evening of April 22, 1893, the deceased, a girl of about seven and a half years, was standing on the pavement of Fourth street a short distance below Borden. It was somewhat dark, so that persons could not be seen plainly, but the boy testified that he saw the car by its lights, and as it came along the 'little girl started to run across Fourth street diagonally in front of' it. The driver called out to her “ hey, there,” but she answered “ never mind, I can get apast,” and ran on and was knocked down and injured by the car. It would have been a perfectly clear case of' contributory negligence had the deceased been a grown person. Being a child such negligence is not chargeable to her, but the facts have a bearing on the question of the negligence of defendants. The only negligence attributed to them is the speed of the car, and the failure of the driver to stop when he saw the child.

In regard to speed the only evidence is the testimony of the bo}7 that the car was coming fast. He was not asked nor did he say that it was faster than usual. The attempt to deduce unusual speed from the distance the car ran after striking the child must fail from the uncertainty of the evidence as to what part of the car passed over her and the direct testimony of the boy that it only slid two feet.

As to the duty of the driver to stop, it must be remembered that he had passed the 'crossing at Borden street where he was bound to expect and therefore to keep a special watch for foot passengers, and the little girl was still on the pavement, though about to step into the street, when he gave her the warning. He had a right to suppose it would be sufficient. The circumstances show that he was paying attention to his business, and using his judgment in the way the situation seemed to require. The result proved that it would have been better to have stopped or checked the car at first, but wisdom after the event is easy, and • looking only at the facts as they appeared to the driver then, the jury would hot be justified in saying that he ought to have foreseen the necessity of stopping. The learned judge was right in holding that there was no sufficient evidence of defendant’s negligence.

Judgment affirmed.