McFarland v. Elmira Water, Light & Railroad

Cochrane, J.: The plaintiff’s intestate, a boy about eight and a half years of age, was run over and killed by one of the defendant’s trolley cars, and this action is based on the alleged negligence of. the defendant in causing Ms death. The defendant operates a street railroad extending easterly and westerly through West Second street in the city of Elmira. The deceased was attending school in a school building on the northerly side of West Second street and about opposite where the accident occurred. He with a number of other children had just been dismissed from school. There is evidence that as the car approached there were about a dozen boys engaged in what was known as a game of “ tag,” which consisted in running after and trying to catch each other; that some of - the boys had run across from the schoolhouse or northerly side of the street to the southerly side and that the deceased was running after them and endeavoring to overtake them in their game of “tag” as the car approached and struck him. The jury might properly have found that as the motorman of the car approached he saw or should have seen the boys playing on either side of the street and some of them running across the street and that he should have known that engrossed as they were in their sport they might not be alert or sensitive to the danger of the approaching car. The car was equipped with a fender, which, was caused to drop by a pressure of the motorman’s foot in the event of danger or an emergency. That was its purpose. ■ It was the duty of a prudent man as he approached the boys to check the speed of the car so as to have it under control or at least to drop the fender and to give the usual signal.' The evidence tends to show that he took none of those precautions. There is evidence that the car did not stop at the last street crossing before the accident. It had recently snowed and it appears that the body of the boy was pushed along, leaving its mark in the snow for twenty-five or thirty feet behind the car before it stopped. The car was about twenty-five feet long, and when it stopped the body of the boy was under it,-and five or six feet forward from its rear end, so that he must have been pushed or rolled along in the snow thirty or thirty-five feet and the car must have traveled fifty feet or more after striking him. A former motorman on this same line testified that a car such as the one in question going at the rate of fifteen miles an hour [196] could .be stopped in thirty-five feet. It also appears that, the mark in the- snow made by the body. of . the boy was- near' the • southerly ■rail of the track indicating that he had almost made the crossing in front of "the- car and was struck about .-aslie. was. clearing the southerly rail and getting out of danger. Hence, the inference is proper 'either that this motorman at thedime of the accident was operating the car at an unduly rapid rate of speed or that he was not watchful and ■ attentive to his duty, for had he been he would not. have traveled fifty feet after striking the boy. It may, be that the-evidence' in its entirety presents a cáse where conflicting, inferences might be drawn, but on this appeal the plaintiff is entitled to the most favorable inferences and judged from that standpoint it cannot, be said as matter of law-that the. defendant was not -negligent. The inference ■is proper that the motorman should have anticipated that these-boys playing in. the street were in danger and should have, realized that his car was traveling too rapidly in the presence of such danger. The jury might properly have found, negligence on Ink part in operating the car too rapidly and in not giving any signal of its approach having in view the possible danger of the boys getting ■in front of the car engaged as they were in their sport and having their, minds' diverted thereby. Had the speed ' of the car been checked the boy ¡might, have' crossed in safety as lie'almost sue-' ceeded in doing and had the proper signal been given it.might have ■attracted his attention and-prevented him from attempting to cross in front-of the car. • ' On the question of contributory negligence I do not think it can he said as matter of law that a boy eight and one-half years old is. thus guilty under the circumstances here appearing. A"bóy of that age has not the judgment, or mental development which an adult has to make him alert to the danger of. a situation. There is-evidence that, when this boy was engaged in playing Ms mind was very intense and not active respecting: other things. He- may have been so absorbed in his pastime as to make him forgetful or unmindful of danger or he may have thought that, he could cross .in safety the track in front of this, car as he .might have done if the car had not been traveling at an excessive, rate, of speed. These considerations were for the jury. (See Stone v. Dry Dock, etc., R. R. Co., 115 N. Y. 104; Sullivan v. Union R. Co., 81 App. Div. 596 ; [197] affd., 177 N. Y. 525, and Finkelstein v. Brooklyn Heights R. R. Co., 51 App. Div. 287.) The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event. Kellogg, J., concurred; Smith, P. J., concurred in result; Sewell, J., wrote for affirmance in an opinion in which Chester, J., concurred.