#### Schuyler Ackerman, as Administrator, etc., of Prank Ackerman, Deceased, Appellant, *v.*Irving E. Stacey, Respondent.

Fourth Department,

July 8, 1913.

Negligence — death of infant struck by automobile while crossing city street — evidence — speed of automobile — charge — care required of infant.

An action to recover for the death of plaintiff’s intestate, a boy about ten years of age, who while crossing a city street in the evening was struck and fatally injured by an automobile in which the defendant was riding with his chauffeur who was driving the car.

Evidence examined, and *held,*that although there was no direct testimony as to an estimate of the speed of the car, there was some evidence of facts from which as an inference the jury might under proper instructions have determined that the car was running at a greater speed than four miles per hour, and it was error for the trial court to instruct the jury that there was no evidence warranting them in finding that the speed exceeded said rate;

That although the court had properly charged that the intestate should be held to only that degree of care and caution for his own safety which a reasonably careful and cautious boy of that age is accustomed to exercise, it was error to charge subsequently that the burden was upon the plaintiff to show that the intestate was incapable of taking care of himself in the street in order to warrant the jury in finding that he was not guilty of contributory negligence;

That a judgment in favor of the defendant should be reversed and a new trial granted.

Appeal by the plaintiff, Schuyler Ackerman, as administrator, etc., from a judgment of the Supreme Court in favor of *836the defendant, entered in the office of the clerk of the county of Herkimer on the 1st day of July, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of June, 1911, denying plaintiff’s motion for a new trial made upon the minutes.

*A. M. Mills [James A. Evans,*attorney], for the appellant.

*Andrew J. Nellis [Robert F. Livingston,*attorney], for the respondent.

Robson, J.:

Plaintiff’s intestate, an infant nearly ten years of age, a pedestrian crossing a public street in the city of Little Falls about ten o’clock in the evening of June 15, 1910, was struck and fatally injured by an automobile in which defendant was then riding with three members of his family and two friends besides a chauffeur, who was driving the car. Respondent does not seem to claim on this appeal that he, though not in fact the owner, was not the person responsible for the operation and management of the car. The evidence presented a fair question of fact both as to defendant’s negligence and the contributory negligence of deceased, and we should not be inclined to disturb the verdict of the jury in defendant’s favor except that, as it appears to us, the substantial rights of plaintiff were on the trial prejudiced by certain rulings of the trial court.

The speed at which the car was running at the time of the accident was a material factor in the evidence upon the question of defendant’s negligence. No witness testified directly as to an estimate of the speed of the car; and the court in the course of the trial held that there was no evidence warranting the jury in finding that the speed exceeded four miles an hour. This ruling was first made at defendant’s request when the court was considering the question whether there was evidence to go to the jury on the question of a violation by defendant of the statute as it then existed, which limited the speed at which it was lawful to run an automobile under the conditions which the evidence disclosed were then present. (See Highway Law [Consol. Laws, chap. 25; Laws of 1909, chap. 30], § 291 *et seq.;*since repealed by Laws of 1910, chap. *837374, adding to Highway Law, art. 11.) To this ruling plaintiff duly excepted. When plaintiff’s counsel was making his closing address to the jury the court held that he had no right to suggest to them that the car was going at a greater rate of speed than four miles an hour. Again in the charge of the court the jury were fully instructed that, though they could not under the evidence find that the car was running at a greater speed than four miles an hour, yet, as the court said: “ If the conditions there, in view of the park being located on the right hand side, the conditions as to the street lights, and the conditions as to the probability of persons passing from the park out into the street, were such that the chauffeur ought to have reduced the rate of speed more than he did, ought to have had his car under better control than he did, so as to have been able to stop it in less time and less space than he did, then those are circumstances which you have a right to take into consideration on the question as to whether he was or was not negligent in the operation of that car.” Exceptions to these rulings of the court were duly taken in behalf of plaintiff. We think the jury’s consideration of the question of the speed of the car should not have been thus limited; and that there was some evidence of facts from which as an inference the jury might under proper instruction have determined that the car was running at. a considerably greater speed than four miles an hour. It appeared that the car weighed 3,000 pounds and was equipped with a gasoline motor of forty-five horse power. It was also equipped with both a foot and an emergency brake, which, as the chauffeur testified, “ acted quickly and were very forcible and powerful.” He also testified that as soon as he saw the intestate, who was then directly in front of the left headlight of the car and but about a foot distant, he “threw on the brakes and pulled the throttle which slackens the speed of the machine and stops her.” He further says, “I applied the foot brake just as soon as I saw the boy. I put on the other brake after that;” and this brake was found to be on after the car had stopped. There is further testimony upon which the jury might have found that this car, notwithstanding these efforts -of the chauffeur to stop it, ran, after the *838intestate was struck, more than seventy feet along a street having, as the exhibits indicate, a slight up-grade in the direction the car was moving. Under such circumstances it is apparent that the car had a considerable momentum when it struck the intestate; and, if it ran more than seventy feet after he was struck, under the conditions shown by this part of the evidence of the chauffeur, it is not credible that its speed was not greater than four miles an hour. Though there was • no evidence to show within what distance this, or a similar car would be stopped under similar conditions when running at any designated speed per hour, yet it was for the jury to deduce as an inference from these facts the speed of the car, and not for the court to hold as matter of law that the evidence did not warrant a finding that it was running more than four miles an hour.

We are also of the opinion that the court erred in charging the jury upon the question of the contributory negligence of plaintiff’s intestate. In the body of the charge the jury were instructed correctly that ‘‘ A boy of ’ that age is not held to the same high degree of care and judgment that a person of mature years is held. He is held under the law to only that degree of care' and caution for his own safety that a reasonably careful and cautious boy of that age is accustomed to exercise.” And the court further at some length explained and elaborated this principle in its proper application to this case. But after the completion of the main charge the court, at the request of defendant’s attorney, charged “ That the burden is upon the plaintiff to show that his intestate, Frank Ackerman, was incapable of taking care of himself in. the street in order to warrant the jury in finding that plaintiff’s intestate was not guilty of contributory negligence.” The effect of this statement by the court was an instruction to the jury that plaintiff was required to establish that intestate, without reference to his age, intelligence, or the circumstances in which the evidence shows he was placed at the time of the injury, was actually incapable of taking care of himself in the street. That the court did not at the time fully appreciate the comprehensive extent of this request to charge to which he acceded appears from the different state*839ment of the law in the body of his charge and also from some further requests which were charged at the suggestion of defendant’s attorney. Recognizing, as we do, that error is not ordinarily to he predicated upon distinct parts of a charge, even though when separately considered they may be incomplete, or to some extent inaccurate statements of the law, if the charge taken as a whole contains correct instructions to the jury upon these points, yet we cannot say that this statement, addressed as it was to the jury among the last instructions they received, and coming with the added force of a distinct statement of what plaintiff must prove as to the capacity of deceased to care for himself in the street else a finding that he was guilty of contributory negligence must he made, was not so prejudicial to plaintiff as not to present error for which a reversal of the judgment should be directed:

The judgment and order should he reversed and new trial granted, with costs to the appellant to abide event.

All'concurred, except Foote, J., not sitting.

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