#### Solomon Sobol, as Administrator, etc., of Joseph Sobol, Deceased, Respondent, *v.*Union Railway Company of New York City, Appellant.

First Department,

December 13, 1907.

Negligence — infant killed by street car — contributory negligence.

In an action to recover for the death of an intelligent boy, nine years old, who was struck by a street car while playing in the street, a verdict for his administrator will be reversed where he failed to show whether the decedent saw the car or made any effort to discover if one was approaching in either direction, and when three of the four witnesses called by the plaintiff testified in effect that the decedent was running across the street, which was but ten feet wide from curb to track, toward the approaching car and stepped on the track when the car was from fifteen to twenty feet away, and when two of the plaintiff’s witnesses testified that they saw the motorman attempt to stop the car.

Appeal by the defendant, the Union Railway Company of Hew York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of January, 1907, upon tiie verdict of a jury for $2,500, and also from an order entered in said clerk’s office on tlie 13th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*Bayard H. Ames,*for the appellant.

. *Frederich & Martyn,*for the respondent.

Laughlin, J.:

This is a statutory action* to recover for the death of Joseph Sobol, alleged to have been caused by the negligence of the defend*818ant.' On the evening of the 14th day of July, 1904, at about half-past seven o’clock, the decedent, who was nine years and five weeks of age, was struck by a north-bound car of the defendant on Third avenue, between One Hundred and Fifty-fifth and One Hundred and Fifty-sixth streets, and sustained injuries which resulted in his death. We are of opinion that the evidence is insufficient to sustain the verdict. It does not appear that the decedent exercised proper carefor his own safety or that the motorman of the defendant was negligent. One Hundred and Fifty-fifth street intersects Third avenue on the west, but does not cross it. The distance between One Hundred and Fifty-fifth and One Hundred and Fifty-sixth streets is 200 feet. The decedent. resided with his parents at Ho. 3032 Third avenue, which is on the east side nearly midway between One Hundred and Fifty-fifth and One Hundred and Fifty-sixth streets. He had attended school three or four years and was a bright, careful boy, and had been for a long time accustomed to play in .the street. The plaintiff called four ■ eye-witnesses to the accident. Mr. Stedman, who was standing at the southwest corner of One Hundred and Fifty-sixth street and Third avenue, testified that it was very light; that he saw the boy leaving the easterly curb ' in front of Ho. 3036, which would be two doors north of his residence and'run *southerly*toward the track; that he was “traveling not very fast, on a little run; ” that the north-bound car had then just passed One Hundred and Fifty-fifth street “going at a good rate of speed.' I should say fast, a good rate of speed,” and he admitted that he testified before the coroner that the speed, was six miles an hour; that he heard, no bell until after the car struck the boy but' would not swear that it was not rung; that he should judge that the boy was about fifteen feet from ,the car when he stepped on the track and he admitted that he testified before the ■ coroner that decedent stepped upon the track within five feet of the car ; that he saw the motorman try to stop the car when fifteen feet from the boy or fifteen to twenty feet from where the accident occurred, and had so testifiedbefore the coroner;' that the car went about a car-length and a half after striking the boy, and he admitted testifying on this point before the coroner that it only went - about fifteen feet after striking the boy. He also admitted that he made a statement in writing to the defendant as to' how the accident *819occurred, and that in answer to the question, “ Please give full account of accident as witnessed by you,” he had written, “The boy ran from curb to car track. Motorman had no time to stop car, because it was so unexpected.” One, Kimball, who resided on the east side of the avenue, opposite One Hundred and Fifty-fifth street, testified that he was leaning out of his window up stairs, looking out on the avenue, and saw decedent about midway between the curb and rail of the track, nearly in the middle of the block “ on a little run; ” that the car was then within fifteen feet of decedent; that “ the car seemed to be going a pretty good rate of speed,” which he judged to he between twelve and fifteen miles per hour, or the ordinary rate there; that the car was within twelve or fifteen feet of the boy when he stepped on the track. This witness made a statement in writing to the company, in which he stated that there was no carelessness or neglect on the part of the conductor or motorman, so far as he knew; that the car was going at the medium rate of speed and “struck a boy who ran out from curb, directly in front of car. The motorman applied brake and stopped his car as quickly as he could. * * * As far as I know, the motorman was not to blame.”

One Bokomy, who was standing at the northeast corner of Third avenue and One Hundred and Fifty-fifth street, testified that he saw the boy about half way between the curb and the track in front of Ho. 3034 “ going on a dog trot,” and saw the car one-half a car length or a car length south of One Hundred and Fifty-fifth street; that the car continued going very fast until the accident; that he heard no bell; that “ when I saw him he was running a little bit fast to get by the car; ” that when he saw the boy he noticed another boy running after him, but he could not say how far behind, and that the car passed between him and the boy so that he did not see it strike the bby.

One Blake, who was standing at the southeast corner of One Hundred and Fifty-sixth street and Third avenue, testified that he saw the decedent standing on the curbstone about one hundred feet south of him and run diagonally *north*from the curbstone towards One Hundred and Fifty-sixth street, and that another hoy was running after him, about t.en feet behind; that when he saw the boy running from the curbstone, the car was about seventy-five or one *820hundred feet from decedent and was coming quite fast; that the boy ran to the middle of -the' track and turned around and tried to get off again and was struck; that “ the car was twenty feet away from him when he stepped into the track.;” that the car was about twenty feet away from the boy when he was on the center of the track and turned; that he saw the motorman make no effort to stop the' car until he was a few feet away from the boy, when he tried very hard to stop it; that the distance from the curb to the track was ten feet and the boy was about two feet on the track when he. was struck; that it appeared to him that the car went about seventy-five feet while the boy was going twelve.

The evidence introduced in' behalf of the plaintiff does not indicate whether the boy saw the car or made any effort to discover whether a car was approaching from either direction. * It is unnecessary to review the evidence introduced in'behalf of the defendant. It does . not aid the plaintiff, for it tends to show that .the boy ran into the side of the car and did not get upon the track in front of it. It is clear that the plaintiff failed to sustain the burden devolving upon, him of showing that the decedent was free from contributory negligence and that his death was due to the negligence of the defendant. The fact that á boy was following the decedent does not materially aid the plaintiff’s case. There is nothing to. indicate that the decedent was obliged to run across the track, and as he led the way, it was incumbent upon him to pay some attention to his surroundings. But for the testimony of Blake there would be no evidence tending to show that the motorman should have discovered the position of the boy in time to avoid injuring him, and it is inconsistent with the testimony of the other three witnesses called by plaintiff.

It follows that the judgment and order should be reversed and a. new trial granted, with costs to appellant to abide the event.

Iñgbaham, Clarke and Scott, JJ., concurred ; Pattersoñ, P. J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

*

See Code Civ. Proc. § 1902 *et*seq.— [Rep.