#### Stanislaus Nowakowski, an Infant, by John Nowakowski, His Guardian ad Litem, Respondent, *v.*New York and North Shore Traction Company, Appellant.

Second Department,

June 26, 1914.

Railroad — negligence — injury to person crossing tracks — contributory negligence of infant.

Action by an infant, nine years of age, against a street railroad company to recover for personal injuries. It appeared that the plaintiff crossed the first of the defendant’s tracks at a point where there was no intersection of streets, at a time when the car which subsequently struck him must have been over 500 feet distant. He had only 15 feet to go in order to cross the second track. On all the evidence, *held,*that the plaintiff was guilty of contributory negligence as a matter of law.

A child nine years of age, not mentally deficient, who heedlessly steps in front of a rapidly moving car, may he held to be guilty of contributory negligence as a matter of law.

Appeal by the defendant, New York and North Shore Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 26th day of February, 1914, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of February, 1914, denying defendant’s motion for a new trial made upon the minutes.

*James A. MacElhinny,*for the appellant.

*Martin*T. *Manton*[*Vine H. Smith*with him on the brief], for the respondent.

*882Burr, J.:

On May 26, 1912, Stanislaus Nowakowski, then a lad nearly nine years of age, who had attended the public schools for nearly three years, while crossing Crocheron avenue, about 500 feet distant from Chamber street in the village of Bayside, was struck by a car operated by defendant company and sustained personal injuries resulting in the loss of his leg. On a former trial a verdict in favor of plaintiff was set aside by the learned trial court, and the order granting a new trial was unanimously affirmed. *(Nowakowski*v. *New York & North Shore Traction Co.,*158 App. Div. 949.) Upon a second trial plaintiff has again recovered a verdict, and from the judgment entered thereon, and the order denying a motion for a new trial, defendant appeals.

Without determining whether the jury’s finding of negligence upon defendant’s part is against the weight of evidence, we are of opinion that plaintiff’s contributory negligence as matter of law is so clearly established that the complaint should have been dismissed. To sustain his case plaintiff called four eye-witnesses of the occurrence. Philip Voskovitch, the first witness, testified that plaintiff was crossing Orocheron avenue from south to north, that he had safely crossed both rails of the southerly track and the southerly rail of the northerly track, and while crossing the fourth or northerly rail he was struck by a car proceeding in a westerly direction. He also testified that he walked straight across the tracks and that when plaintiff was crossing the first rail the car was just turning the comer of Chamber street.

A second witness, Henry Sadowsky, testified that when the car was turning the corner plaintiff was crossing the “second track,” but by this he evidently intended “ rail,” for he speaks of his being struck upon the “fourth track” and concededly there are but two tracks in the street. He testified also that plaintiff looked in the direction from which the car came when he was at the first rail, and that no car was then coming, that is, it had not turned the corner, and that he then looked in the opposite direction and, so far as the testimony of this witness discloses, did not again look toward the east.

A third witness, Sophia Borowska, testified that she saw *883plaintiff crossing the tracks and that “he had his back turned towards the car-; ” while the fourth witness, David G-. Steiner, testified that he “noticed the small object which I afterwards found was the boy, crossing the street in a sort of diagonal way; not straight across, but sort of sideways,” and that “He seemed to have his head turned * * * towards the right side,” which would be in the direction from which the car was coming.

All the witnesses place the point of collision as west of the Catholic church on the north side of Crocheron avenue. This is at least 500 feet from the point where the car turns from Chamber street into Crocheron avenue, and a witness called by defendant testified that the morning after the accident he measured the distance from said corner to a “blood spot” still appearing in the road, and the distance was 518 feet. There is no dispute that there is nothing of a permanent character to obstruct the view from this point to the intersecting street, and there is evidence on the part of plaintiff’s witnesses that at the time in question it was not temporarily obstructed. Disregarding the conflicting testimony of these witnesses, and stating the case most favorably for the plaintiff, the jury might have found that as plaintiff approached the southerly rail of the southerly track he looked to the east, a distance of 500 feet, and that the car had not then turned the corner of Chamber street. Proceeding then to cross the tracks, a distance of about 15 feet, either he failed to look a second time, particularly before stepping upon the northerly track on which the car proceeding from the west would come, or if he did look he failed to observe it when it was in plain sight. If the car was proceeding at the rate of thirty miles an hour, which in view of the uncontradicted evidence is undoubtedly greater than the actual fact, it would require about twelve seconds to reach the point of contact from the corner of the intersecting street. If the boy was walking three miles an hour he would require not more than three and one-half seconds to clear the tracks. It inevitably follows, either that the car was in sight when he stepped upon the first rail of the southerly track and that he negligently failed to observe the same, or that he loitered and then crossed the northerly track without looking at all for a car, which might *884be approaching in this direction, and that, too, at a point where there was no intersecting street, where the car had the paramount right of way, and upon a suburban highway where a higher rate of speed than would be prudent in a crowded city street is not only permissible but demanded by the existing circumstances. There is no contention in this case that plaintiff was so young that he was not bound to exercise some degree of care in approaching a point of danger. It is true that he may not be required under all circumstances to exercise the same degree of care which an adult would exercise. He is required to exercise care commensurate with his age and intelligence. *(Weiss*v. *Metropolitan Street R. Co.,*33 App. Div. 221; affd., 165 N. Y. 665; *Fenton*v. *Second Avenue R. R. Co.,*126 id. 625; *Specht*v. *Waterbury Co.,*208 id. 374.) In the case at bar a child nearly nine years of age, not shown to be mentally deficient, heedlessly steps in front of a rapidly moving car and is injured. His contributory negligence ceased to become a question of fact and is established as matter of law. *(Byrnes*v. *Brooklyn Heights R. R. Co.,*148 App. Div. 794; *Perez*v. *Sandrowitz,*180 N. Y. 397.)

The judgment and order appealed from should be reversed, and plaintiff’s complaint dismissed, with costs of the appeal and of the action.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed, and plaintiff’s complaint dismissed, with costs of the appeal and of the action'.