#### Harry Griffith, Plaintiff, *v.*The Metropolitan Street Railway Co., Defendant.

(Supreme Court, New York Special Term,

July, 1900.)

1. Negligence — Contributory, of boy aged eight years.

Where the evidence in an action brought against a street railroad company for its negligence indicates that the .plaintiff, a boy aged eight years but *sui juris,*voluntarily placed himself in a position where he could be struck by an approaching cable car, a verdict in his favor must be set aside by the trial court and the complaint dismissed.

3. Same — Practice — Reservation of motion to dismiss complaint.

The practice of receiving special findings of fact and an assessment of damages, with reservation of a motion to dismiss the complaint, approved as being adapted satisfactorily to determine the litigation, either at the end of the trial or on appeal, without necessitating one or more new trials.

Motion after trial and verdict to dismiss the complaint, and set aside the verdict.

Bullowa & Bullowa, for plaintiff.

Henry A. Robinson, for defendant.

Russell, J.

The plaintiff asks, upon a reserved motion after trial and verdict, to dismiss the complaint and set aside the verdict for $5,000, which the jury gave the plaintiff by assessment of damages and special findings of fact, all in plaintiff’s favor.

On the 17th of April, 1899, the. plaintiff, a boy about eight years of age, on a bright day, undertook to cross the tracks of the defendant near Ninety-fourth street, on Columbus avenue, in the city of New York, midway between the cross walks forming the northern boundary of Ninety-third street and the southern boundary of Ninety-fourth street, was struck by a cable car moving up town on the east tracks, his right arm fractured and his left leg crushed so that amputation above the ankle became necessary. There is no sufficient evidence to support a verdict unless his *290version of the occurrence, partly supported by testimony of two other witnesses, gave the jury the right to find negligence of the defendant, and an absence of contributory negligence on his part. His narration should have been received by the jury, and must be considered by the court, with sufficient caution because not only of his childish years, but of the confusion and disturbance of memory and mental power from the severe injury by him received, and the brief period of about six seconds in the receipt of the mental impressions upon the mind which he undertakes to reproduce upon the witness-stand; and also, because of the great attractiveness of the child in his personnel, which, coupled with a lasting life injury, would necessarily disturb any sympathetic heart.

He says that after being in a store, and gazing at workmen employed at a manhole, he walked across the street, reaching the eastern or uptown track after a car had passed upward, and was prevented from immediately crossing the tracks by two cars going downtown on the west track; that he, nevertheless, stood upon the east track, and looking southerly beheld another uptown car, two or three houses away, identifying a spot which by measurements and the maps produced locate the distance at sixty to seventy-five feet from where he stood. He turned around to move off the track, but was struck before he got out of danger by a car moving not to exceed nine miles an hour. The responsibility of his own voluntary acts is to be judged by the finding of the jury that he was *sui juris,*capable of self-protection so far as a child of that age could ordinarily judge. On this version there is no conceivable escape from the conclusion, either that he took the' chances of being able to cross the west track after the last downtown car had passed, and before the uptown car reached him, or he voluntarily waited too long before stepping back two or three feet from the eastern track, which would have placed him in a position of safety. There is a dearth of evidence which would justify any assertion that circumstances of peril called for quick judgment between two choices of action, either of which might involve injury, for he knew that on the track he would be in peril, and that he could most easily avoid it by two steps backward or sideways, and he nowhere claims surprise or confusion. Any such confusion to an extent throwing the responsibility upon the motorman, or exempting the plaintiff from its consequences, *291would not upon the evidence in the case justify a verdict against the one and for the other, and would be simply a hazardous guess on the part of any tribunal empowered to decide between these persons.

The motorman knew that he had the right to ordinary free passage with his car between streets so far as foot passengers were concerned. He had no right to move that car against an object more or less helpless if the appearances reasonably required him to apprehend possible harm, but he had the right to assume that a free agent in the shape of a human being, alive with intelligence and an instinct of self-preservation, would not voluntarily remain upon the track in front of the approaching car when one easy motion would remove him from peril. And this motorman knew from the look, which the boy cast upon that approaching car that it was seen by him, and sight under such circumstances was a better substitute for notice than any ringing of bell or sounding of gong, upon which subject there is a divergence of testimony. To hold the motorman liable for negligence, the court must affirm that the danger of an active boy remaining upon the track was such that this motorman should have stopped the car in the middle of the block before the boy was reached, whether or not that car could have been stopped with a sudden jerk to the discomfort and possible injury to the passengers inside, at a distance of fifteen feet or of thirty feet from the place of a sudden and violent application of the brakes. The omission to so stop the car was not such departure from ordinary prudence as would justify the charge of negligence, and a verdict to the contrary cannot be sustained. Bello v. Metropolitan Street R. Co., 2 App. Div. 313.

A more pertinent case, however, in my view, is one not cited by counsel, decided by the Appellate Division, First Department, Greenberg v. Third Avenue R. R. Co., 35 App. Div. 619. If this case has been overruled in any manner it has escaped my observation.

The same condition of things applied to the purely voluntary acts of the plaintiff brings the presumption of his negligence. He was not justified by any rules of ordinary prudence, even judging a boy of that age, to remain upon the track for five or six seconds after he saw a car approaching upon the same track at a point where people do not usually cross the avenue, and if impelled by a native fearlessness of temper, willing to risk the chances of see*292ing how near he could come to, danger without attack from it, he cannot shift the responsibility of his choice upon one engaged in the duty of public service, who had no reason to apprehend the courting of danger by the boy in front of the car.

I have considered this case so far upon the motion to dismiss the complaint in as favorable a light to the claim of the plaintiff as the evidence justifies. A different view of the facts is so reasonable, however, as to justify the belief that it is fairly proven with all the sufficient certainty which the law requires. Various witnesses for the defendant testify substantially that the accident occurred from the boy attempting to run ahead of the car when it was within a few feet of him. Such action would be natural and boy-like, while his standing upon the track after sight of the car would be unnatural, and not even instinctively intelligent.

The practice of receiving special findings of fact and an assessment of damages, with a reservation of a motion to dismiss the complaint, seems to be approved as well adapted to satisfactorily determine the litigation either at the end of the trial, or upon appeal, without the necessity of one or more new trials. Code Civ. Pro., § 1187; Caspers v. Dry Dock, E. B. *&*B. R. R. Co., 22 App. Div. 156; Sullivan v. Metropolitan Street R. Co., 37 id. 491.

It was adopted in a case tried before the justice, who presided at this trial, in which the verdict of the jury was for $30,000, and in which the complaint was finally dismissed upon the merits, notwithstanding the verdict. Mixsell v. N. Y., N. H. & Hart. R. R. Co., 22 Misc. Rep. 73.

In the case at bar, if the trial court is correct in its views, the plaintiff may not recover; if incorrect, the verdict may be restored by the appellate tribunal, and the controversy in that matter ended. The verdict is set aside and the complaint dismissed, with costs.

Verdict set aside and complaint dismissed, with costs.