#### Katherine P. Gallagher, as Administratrix, etc., of George Gallagher, Deceased, Respondent, *v.*New York City Railway Company, Appellant.

First Department,

March 20, 1908.

Negligence — child.- killed by street car — contributory negligence — burden of proof on administrator — duty of pedestrian to look, when excused.

The rule in negligence actions that *the*plaintiff must bear.-the’burden of showing absence of contributory, negligence has been somewhat relaxed in death .cases with regard tp the amount and kind of proof required, especially where there were no eye-witnesses of the accident, yet the rulé has not been' abro*869gated and applies where the deceased was a child as well as where he was an adult.

The failure of a pedestrian crossing a city street to look for approaching cars does not establish contributory negligence *per se,*where the car causing the injury was at such a distance that had he looked he would have been warranted in assuming that it was safe to cross. But this rule is not applicable where there is no evidence tending to show the position of the car at the time the pedestrian started' to cross. The omission to look is only excused in a situation where that precaution, as shown by circumstances, would have been unavailing.

In an action by an administratrix to recover for the death of a boy eleven years old who was struck by a surface car while walking diagonally across a city street no claim was made that the deceased was incapable of caring for himself, but it appeared that he was a bright boy and familiar with the location. There was no evidence, either direct or inferential, that he looked for approach- • ing cars before or after leaving the sidewalk although the view was unobstructed, or that he exercised any care for his own safety. On the contrary, it appeared that he stepped upon the track in front of the moving car when it was less than fifteen feet away.

*Held,*the plaintiff failed to show freedom from contributory negligence.

Appeal by the defendant, the New York City Eailway Company, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of New York on the 15th day of May, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 15th day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*Bayard Eh. Ames*of counsel *[James L. QuacTcenbush,*attorney], for the appellant.

*John J. CP Connell*of counsel *\Bullowa db O'Connell,*attorneys], for the respondent.

Clarke, J.:

This is an appeal from a judgment for $5,163.60 entered upon a verdict- and from an order denying a new trial, in an administratrix’s action to recover for the death of her son eleven years eleven . months and five days old, who was killed about half-past four o’clock on March 13, 1905, between One Hundred and Twenty-first and One Hundred and Twenty-second streets on Madison avenue, by a north-bound Madison avenue car. At the *locus in quo*Madi*870son avenue lies east of Mount Morris Bark Which extends from One Hundred and Twentieth street to One Hundred and Twenty-fourth street. One Hundred and Twenty-first, One Hundred and Twenty-second and One Hundred and Twenty-third streets are interrupted by the park. There.is an entrance to. the park at One Hundred and Twenty-second street. -

The sole witness of the accident produced by the plaintiff was a boy of. thirteen, Lawrence Levy, who testified that “I was at the southeast corner of 121st Street and Madison Avenue. I was looking for the . fellows playing deers, over, in the park. *. * * We were playing deers. I Was looking directly west;” that he saw George (the decedent) coming from the direction of Bark to Madison .Avenue. “ I first saw • him on the walk at 121st street, southeast corner. **■** . * I was still looking west, looking for the-boys who were playing with'me. He went'diagonally towards the entrance of the park at 122nd street. * * * Q. *' '* * How at the time that he left the southeast corner of Madison Avenue and 121st Street, did yon see any car in sight ? A. Ho, sir. * * * I saw him walk across in the- mud-gutter towards the-.park. * * * -Q. Did:he walk fast or slowly ? A. Ordinary. Q. You Were looking straight across where the boys-were playing?' * * * A. Yes; sir. * * * I was-looking, towards the fellows and then when he was by the crosswalk, in the middle of the crosswalk of 121st street, the car was about five feet back of him. Q. You saw the car coming along back-of him?. A. Yes, sir. The motorman didn’t ring liis bell. I saw the car coming along first. It was going north as fast as- lightning. It got about five feet in front of the boy and the motorman hollered to get off the track. George at this time was right about in the middle of the car track. The car hit him and threw him up in the air. His hat fell off and fell on the platform. Me. nearly went on the platform and he fell under. ; The motorman, as I saw him, didn’t do nothing. * * * He went under this car and begot dragged to the tree. That tree was right at the end of- the first private house above the church.” According to this boy’s testimony it was about ninety feet from where George was struck to where' the car stopped.

Hnder cross-examination he- said that lie had known George *871about a year; that George had spoken to him at the corner and then walked in a diagonal direction toward the 'One Hundred and Twenty-second street entrance of Mount Morris Park; that he was not playing any games on the day of the accident as far as he knew: “ I waited on that same corner from the time I spoke to the little Gallagher boy up to the time he was struck. I say that the car came along and was going rapidly. * * * The noise there in the street at that time was some boys playing on the block that weren’t playing in the game. The boys Were shouting and screaming and all that sort of thing and making noise in that way. They were playing in the street. * * * They were down at 121st street, down by the private houses a little past the church, * * * a little to the north of the church and that church is on the northeast corner of 121st street and Madison. * * * When I saw him struck I was on the southeast corner of 121st street and he was on the northeast corner. *- "x" * I say I heard the motorman shout at the boy.”

The testimony on behalf of the defendant given by the conductor, Rouder, a man named Keyser, and two women who ivere on the street, tended to show that the boy was struck about the middle of the front of the church and that the car was stopped in from fifteen to twenty feet. Keyser testified that the boy was engaged in playing ball and ran backward in front of the car, and that when he reached the easterly rail of the north-bound track the car was about fifteen feet from him; that the car' was going at a usual or moderate rate of spéed; that the motorman put on his brake, rang the bell, leaned forward and tried to get the boy and caught his cap. The two women said that the car was six or eight feet from him when he got on the track. There seems to be no doubt that the motorman shouted to the boy; that is agreed to on both sides.

Careful examination of this record fails to.disclose even a scintilla of evidence that the decedent exercised the slightest care or took any precaution whatever to insure his own safety. He was a resident of the neighborhood, nearly twelve years of age, accustomed to take care of himself, go to school and play in the streets, bright, with good eyesight and perfect hearing. He knew that car tracks were in the street- over which electric cars frequently passed. The *872avenue was straight,, it was in the daytime, there were no vehicles or obstructions in the street, as testified to by the plaintiff’s witness. After talking with this boy friend upon the corner, lie started in a diagonal direction across the street for the entrance of the park at One Hundred and Twenty-second street. There is no evidence that before lie left the sidewalk, or while lie was. in the roadway, or before he stepped upon the track, he looked to see .whether any car was approaching, nor is there any evidence of where the car was when he left the sidewalk. According to Levy the car was five feet from him when he got on the track. According to Keyser the - car was fifteen feet from him when he got on the. track.' Accords ing to Mrs. Valentine the car was six or eight feet from him when he got on the track, and according to her daughter about six feet •from him, and the evidence establishes that the motorman shouted at him, attempted to stop the car, tried to catch him and draw him on board, but only succeeded in catching his cap. So that- there is no contradiction in the evidence that the.boy, in full possession of all his' senses, with an unobstructed street and in the daytime, stepped' in front of a moving car which at that time was a very few feet distant from him. This fact, taken i;. connection with the entire absence of evidence as to any precaution upon his part, renders it clear, as it seems to Us, not only that the plaintiff failed to establish want of contributory ‘negligence on the part of the decedent, but that this deplorable accident was the result of the boy’s own heedlessness. . ■ . - .,

The respondent urges that in a death case it is not essential that the plaintiff, in order to recover, must give direct evidence of an eye-witness that the decedent stopped, looked and listened before going on the track. He cites *Tolman*v. Syracuse, *Binghamton & New York R. R. Co.*(98 N. Y. 198). It is true that in that case the court said : “ The burden of establishing affirmatively freedom from contributory negligence may be successfully borne, though there were no eye-witnesses of the accident, and even although its precise cause and manner of occurrence are unknown.” But the same case says; “ The facts leave the occurrence explainable as to its cause and occasion only by the theory of negligence on the part of deceased. . They indicate no way in which the accident might have happened, suggest no adequate cause; winch *873could or might have operated, which way or cause showed freedom from fault on the- part of deceased, and could have produced the result in'spite of his care and prudence. The evidence leaves no rational ground for any other inference than one of neglect and want of care.”

He also cites *Monck*v. *Brooklyn Heights R. R. Co.*(97 App. Div. 447). In that case it was said: “ The rule as applicable to shell facts as are disclosed by the record in this case may be generally stated to be that the failure of proof that a pedestrian, crossing the tracks of a street surface railroad upon the public streets of a village or city, looked to observe the approach of a street car, does not establish contributory negligence *per se,*where the approaching car is at such a distance that, had he in fact looked, he would have been warranted in assuming personal safety in crossing.”

The difficulty in applying that rule to the facts of this case is that there is no evidence tending to show where the approaching car was at the time he started to cross the street and so that it was at such a distance that had he in fact looked he -would have been warranted in assuming personal safety in crossing.

In *Baxter*v. *Auburn & Syracuse El. R. R. Co.*(190 N. Y. 439), a death case, the court said: “When, by reason of the death of the-injured person his mouth is closed, the burden, nevertheless, remains upon the complainant, upon whom the cause of action has devolved, to show affirmatively, by direct evidence, or from surrounding circumstances, that the deceased was without fault. * * * In this case, there was direct testimony upon which the plaintiff relied to show how the accident occurred ; but-it failed to establish, or to suggest, that the deceased exercised that care, or prudence in conduct, which was necessary upon the occasion. Indeed, the testimony of the eye-witness and the circumstances disclosed by the evidence preclude a reasonable inference that he was mindful of the situation.” In that case the evidence was that the decedent had looked and for a distance of 600 feet no car was in sight. The decedent had to go a distance of 35 feet. Judge Gray, speaking for an unanimous court, said: “ The deceased, however, does not appear to have looked again in the direction from which a car might be expected, after he started with his horses to cross,the track. * * * A street surface railway track-may not-*874be as much a place of danger, -as -is a steam- railway track; but, nevertheless, its presence in the street admonishes a person to be reasonably vigilant when attempting to cross. - It behooved the deceased, before going upon it, to use his senses and to look and to listen. He was to decide if it was reasonably prudent at the moment to cross it. The omission to' look would only be excusable-in a situation, where that precaution was shown by the circumstances to have' been an unavailing one. However excessive the speed of' the car, it is plain that had the deceased looked again, after leaving the sidewalk, lie would have- seen it and might have awaited its passage. It was culpable negligence, as matter of law, in my opinion, for him to drive across the car track, between ■ street crossings as he was> without looking to see if a car was approaching, at a point where it could have been seen for several hundred feet. That was the evidence and I think it showed an inexcusable neglect on the part of the deceased, which contributed directly to his injury, as a. proximate cause thereof.’-’

In *Perez*v. *Sandrowitz*(180 N. Y. 397), a death case where the decedent was a boy thirteen years of age, the court held that' the case should not have been submitted to the jury because of the failure to prove want of contributory negligence, saying: “ The evidence utterly fails' to show, directly or inferentially, that the deceased used that degree of care which was incumbent upon him under the circumstances. He was a bright, healthy lad of thirteen years of age, and while he had a right to cross the street between the crossings, he was'bound to use that reasonable degree of care which the circumstances suggested. There is not one fact in evidence to show that he used any care; nor do the facts proven permit of the-slightest inference that any care was exercised.” , In that case* as in this, there was no claim that the decedent was incapable of caring for himself. There was no vehicle or obstruction in the street at the timé which would have prevented him from seeing:the- approaching wagon. What he was doing, whether he was playing or accomplishing some more serious purpose, was not1 certain from the evidence and. the Court óf Appeals' reversed a judgment of the Appellate Division affirming the judgment entered upon the verdict.

.These few cases have been cited for the purpose of showing that while the rule that the plaintiff must bear the burden of showing a *875want of contributory negligence in death cases has been somewhat relaxed with regard to the amount and Kind of proof required, and especially where there are no eye-witnesses of the accident, yet it has not been abrogated in such cases and that it applies to children as well as adults. In the case at bar we have four eyewitnesses of the accident, and whether the deceased was going diagonally across the street to the One Hundred and Twenty-second street entrance to the park or whether he was playingball with the boys who, even according to the plaintiff’s witness, were engaged in that game in the street, yet all of the witnesses agree that he got upon the track from live to fifteen feet in front of the car and that the motorman shouted to him and exerted himself to save him. There is no direct evidence, and, as we view it, no" inferential evidence of any care for his own safety exercised by the boy himself. Therefore, within the well-settled rule the plaintiff did not sustain the burden put upon her by the law.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, Laughlin and Houghton, JJ., concurred.

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