#### Bessie J. Cummings, by guardian, Resp’t, *v.*Brooklyn City R. R. Co., Appl’t.1

*(Court of Appeals,*

*Filed February*8, 1887.)

1. Eaxleoads — Negligence — Street ckossing.

In an action for an injury caused by tbe alleged negligence of a railroad company, which ran trains drawn by a dummy engine through the streets of a city; it appeared that one of the defendant’s trains going north stopped at a cross street so as to obstruct both cross walks. Plaintiff, who wished to cross the street on the south cross walk, left the sidewalk as the train started, and, as the train had not quite passed when she reached it, stepped from the north flagstone to the south one, went behind the rear end of the *738train, and, upon emerging therefrom was struck by another train going south; *Held,*that stopping its cars so as to wholly obstruct the street, and thereby preventing plaintiff from seeing a train coming behind such cars, was under the circumstances sufficient to require the submission to the jury of the question of negligence of defendant in running or managing its trains.

2. Samé — Negligence op mother op child.

Whether or not the mother of plaintiff (a child five years of age) was guilty of negligence in permitting the child to be at large is immaterial, where the child herself was guilty of none.

3. Same — Jury — Construction op charge as to plagman or gate.

Where the court instructed the jury that if the defendant omitted precautions which they should have adopted in order to prevent injury to people on the highway, it was responsible, and that it was for the jury to say whether or not the defendants should have adopted other precautions than it did. *Held,*that it was not erroneous. That where there is no statutory duty of the railroad company to sound a whistle or ring a bell, and it does neither, a charge which leaves it for the jury to say whether under all the circumstances it should have adopted some other precautions than those observed, is not erroneous.

4. Same — Duty op counsel as to charge.

Where the fair import of the charge, taken as a whole, is in accordance with law, if a party complains of the possibility of the language being construed too broadly, it is his duty to call the attention of the court to the real error complained of, and not simply take a general exception.

Appeal from a judgment of the supreme court, general term, second department, affirming a judgment of tbe Kings county circuit, in favor of plaintiff in action for damages.

Tbe facts are sufficiently stated in tbe opinion.

*Morris &*Pearsall, for appl’t., *B. F. Tracy*and *Carpenter &*Roderick, for resp’t.

1

 Affirming 38 Hun, 362.

Peckham, J.

Tbe defendant operates a railroad from tbe City of Brooklyn to Fort Hamilton and runs its cars by means of a dummy engine. Its tracks are laid through Third Avenue, which runs about north and south where it crosses Thirty-Ninth Street at right angles.

There was enough proved to make it proper to submit to the jury the question of the negligence of the defendant. The injury occurred on the tenth of September, 1888, in the afternoon. Evidence was given that one train of two cars drawn by a dummy had come up on the east track on its way to Brooklyn, and had stopped at Thirty-ninth street for. a moment or two, the dummy reaching somewhat beyond the north crossing of the street, while the rear end of the rear car was still some 17 or 18 feet south of the south cross-walk ; thus totally obstructing the passage on both cross-walks at Thirty-ninth street. The plaintiff was standing on the curb-stone near the south-east corner of the avenue and the street, waiting for the train to proceed on its way to Brooklyn; and just about the time the train started she left the sidewalk, and commenced to cross the street towards the west, and arrived at where the up-train was passing at about *739the time the rear end of the second ear was passing orer the crossing, so that she left the north flag-stone of the cross-walk, and stepped to the south one, and passed to the rear of the car, and went towards the west or down track, and just as she step-lied towards it she was struck by the dummy, drawing a train coming from Brooklyn, and which she could not see until she stepped from behind the train going to Brooklyn. There was an ordinance of the city put in evidence which provided that “ cars stopping at a street intersection shall stop at the further walk thereof, so that the cars shall not when stopped interfere with the travel on the cross-streets.” The train from the north came down, making no noise by either bell or whistle, and was going very slowly in order to stop at the Thirty-ninth street crossing. The crossing at this place was very much used, there being perhaps no other street along the route as much occupied as that. To stop its cars so as to wholly obstruct the street, the effect of which was to prevent persons in the situation of the plaintiff from seeing any train coming from Brooklyn until the same was actually upon them, was certainly a fact proper to be submitted to a jury upon the question of whether the defendant was guilty of negligence in the running or management of its trains.

The defendant claimed that the mother of the plaintiff was guilty of negligence in permitting the child to be at large, and that, as the child was but five years of age, and *non ?ui juris,*this negligence of the mother was imputable to the child, and she could not, therefore, recover.' To rebut this claim of negligence, the plaintiff proved that the mother was unable to hire any servant or person to aid her in looking after the child, and • hence it was claimed that, as negligence is to be proved or disproved from all the surrounding circumstances, this evidence of inability was proper. We are not prepared to sustain the correctness of the ruling which admitted this evidence ; but it was addressed to the point of showing that the mother was not under the circumstances guilty of negligence, and such fact is entirely immaterial if the child herself was guilty of none, *Ihl*v. *Railroad,*47 N. Y. 317. No facts were proved which showed any negligence on the part of the plaintiff. She was on a public street, and about to cross it, and waited for one train to pass the cross-walk on which she was. The street was a .crowded one, and she naturally desired to get across it as soon as she reasonably could, and thus get out of danger from the carts, wagons, and other vehicles in such street. As the car reaches her cross-walk she steps from one stone to the other, and passes to the rear, for the purpose of crossing, and is struck by the other dummy before she has even got upon the track. In all this she acted as any one might who was taking ordinary care, and who was desirous of getting across a crowded street over a *740somewhat dangerous crossing as soon as conveniently it could, be done.

The greatest difficulty in the plaintiff’s case lies in the charge' of the learned judge. He said to the jury that, if they found, defendant “ omitted precautions which they should have adopted in order to prevent injury to people on this highway, then they are responsible.” Again, he said that “ it was no negligence.” In this case we do not mean to go one step beyond the well-settled principles which have been adopted and frequently announced by this court. We simply say that the. fair import of the-charge, taken as a whole, is in accordance with such principles.-

The defendant excepted to the refusal of the judge to charge that the ordinance put in evidence related to railroads operated with horse-power, and not to those operated.with steam-power. We think there was no error in such refusal. The other sections-of such ordinance showed remedies applicable to railroads operated by horse-power; but they do not control the express language of the section in question, which is broad enough to cover the case of a railroad operated by steam. In addition to that,, the place for stopping cars, as provided in the ordinance, would commend itself to the good sense and judgment of every one and even if there were no such ordinance, the failure of the defendant to operate its train in accordance with such a principle might fairly be submitted to a jury upon the question of its negligence in the management and operation of its trains.

The judgment should be affirmed.

All concur, except Rapallo and Earl., JJ.," not voting.