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CASES

IN THE

COURT OF APPEALS

OF

NEW YORK.

SERANO v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.

[188 N. Y. 156, 80 N. E. 1025.]

APPELLATE PROCEDURE-Effect of the Findings of the Appellate Division.-The reversal of a judgment by the appellate division upon questions of law only, the facts having been examined and no error of law found therein, means that the jury was justified in accepting as true in all instances of conflict in the testimony that which was most favorable to the respondent, and yet that the judgment could not be permitted to stand because that most favorable view of the testimony fell short of supporting the judgment. (pp. 834, 835.)

APPELLATE PROCEDURE Questions Reviewable on an Appeal to the Court of Appeals from the Appellate Division.-If the appellate division reverses on questions of law only, declaring that the facts have been examined and no error of law found therein, and an appeal is taken from such reversal, the court of appeals can review questions of law only. (p. 835.)

NEGLIGENCE-Parent and Child.-It is not Negligence, as a Matter of Law, for parents to permit a child, six years of age, to go unattended on a public street which is crossed by two lines of tracks of a steam railway running nearly at a right angle to the street. (p. 835.)

NEGLIGENCE of Parent-When not Imputed to Child.Though parents are guilty of negligence, such negligence is not imputed to their child, if it exercises such care as is required of an adult under similar circumstances. (p. 838.)

NEGLIGENCE in the Speed of a Railway Train in Cities.In the absence of signals or safeguards by way of gates or flagmen, a speed of from fifteen to twenty miles an hour on a very abrupt curve at a much used crossing in a city is some evidence of negligence to submit to a jury. (p. 838.)

NEGLIGENCE.-A Child of Tender Years is not Required to Exercise the Same Degree of Care and Prudence in the presence of danger which is expected of an adult under like circumstances, but she should exercise such care and prudence as is commensurate with one of her age and intelligence. (p. 838.)

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APPELLATE PROCEDURE-Weight of Evidence, or Excessiveness of Verdict.-The court of appeals of New York cannot, on an appeal from the appellate division, consider the weight of the evidence on questions relating to the excessiveness of a verdict. (p. 839.)

NEGLIGENCE, Contributory, When cannot be Held to Exist as a Matter of Law.-A plaintiff cannot be held guilty of contributory negligence as a matter of law when, being a child six years of age, she undertook to cross the tracks of a railway in a city at a point near where there was an abrupt curve, after first stopping and waiting for a train to pass, which produced much noise and confu sion, and by its presence and the smoke and steam which it emitted obscured the view of another and approaching train by which she was injured. (p. 839.)

Udelle Bartlett and Thomas L. McKay, for the appellant. Henry Purcell, for the respondent.

160 CHASE, J. On the twenty-ninth day of December, 1902, the plaintiff was struck at the Willow street crossing in the city of Oswego by a locomotive attached to a passenger train owned and operated by the defendant. At the time of the accident she was less than six years of age. She brings this action to recover damages for her personal injuries. The fact that an accident occurred is not disputed, but the extent of the plaintiff's injuries and the responsibility of the defendant therefor are denied. The action has been tried twice. On the first trial the plaintiff recovered a verdict. The judgment entered thereon was reversed by the appellate division and a new trial ordered, "upon the ground that the verdict of the jury was against the weight of the evidence," one of the judges concurring in the result, "only upon the ground that the finding of the jury that the defendant was negligent was against the weight of the evidence": Serano v. New York etc. R. R. Co., 102 App. Div. 621, 92 N. Y. Supp. 1145. On the second trial the plaintiff again recovered a verdict. On appeal from the judgment entered thereon the appellate division, by a divided court, reversed the judgment and ordered a new trial, "upon questions of law only, the facts having been examined and no error found therein": 114 App. Div. 684, 99 N. Y. Supp. 1103. The effect of such an order was considered by this court in Albring v. New York etc. R. R. Co., 174 N. Y. 179, 66 N. E. 665, in which case the court say: "This order means . . . that the appellate division reached the conclusion after examining all the evidence that the jury were justified in accepting as true

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in all instances of conflict in testimony that which was most favorable to the plaintiff, and yet could not permit the judgment to stand because that most favorable view of the testimony fell short of supporting the judgment."

This court, as said in the case last mentioned, can review 161 the questions of law that were before the appellate division. Our review is confined to such questions. The plaintiff is the child of poor parents, who for three or four wears prior to the accident lived a short distance from the rossing where the accident occurred. She was an intelligent child, and had attended school for about one year prior to the accident. She had been accustomed to cross the tracks of the defendant's road without attendants, and to play with other little girls in the locality of the crossing. She had been told by both her father and mother that in crossing the railroad tracks she should be very careful and look up and down the tracks before crossing to see if a train was coming.

It was not negligence as a matter of law for plaintiff's parents to permit her to go into the street: Huerzeler v. Central C. T. R. R. Co., 139 N. Y. 490, 34 N. E. 1101. Her parents seem to have regarded her as possessing sufficient liscretion so that she could go to school and upon errands and to play in the street unattended. She had sufficient nental and physical capacity so that prior to the day in question she had avoided accidents. The plaintiff was not worn on the trial and the record does not disclose why she vas crossing the defendant's tracks at the time when the accident occurred. The mother testified that plaintiff left the house ten or fifteen minutes before the time when she was rought to the house after the accident. At the crossing in question the defendant has east and west bound tracks. The general direction of the tracks is east and west, and Willow treet crosses the tracks so as to make the southeasterly angle of the street line with the tracks about fifty-eight degrees. The locomotive that hit the plaintiff was going west on the west-bound, or northerly track. The tracks east of the crossng curve sharply to the right, and there is a bank with fences and buildings adjoining the railroad tracks on the south. The curve of the defendant's road is such that with an otherwise mnobstructed view the engineer sitting on the box on the right side of his locomotive cannot see the crossing until within bout forty feet of the same, and the fireman sitting on the

162 box on the left side of the locomotive, which is the inside of the curve, cannot see the crossing until within about one hundred feet of the same. It is not claimed that the whistle of the locomotive was blown until a moment before the accident, when it was blown at the same time that the emergency brakes were applied. The defendant claims that the bell had been ringing automatically since the train left the Oswego station, about one-half mile east of the crossing where the accident occurred. An east-bound train had passed over the southerly track of the defendant's road a moment before the accident. The engineer on the west-bound train testified that the locomotives of the two trains passed about one hundred or two hundred feet east of Willow street, and other witnesses confirm his estimate. The defendant claims that the plaintiff was not at the Willow street crossing, but that she was on the defendant's right of way, walking between the rails on the west-bound track about ten to twenty-five feet east of the crossing, and that the engineer and fireman of the defendant's west-bound train saw the plaintiff on the tracks as stated, facing west, when their locomotive was within twenty or twenty-five feet of the plaintiff, and that the train was then stopped as quickly as possible, and that the plaintiff as she was stepping off the track was struck by the locomotive and thrown into Willow street. Two other witnesses for the defendant corroborated the defendant's contention. Five witnesses for the plaintiff testified that the plaintiff was on the easterly sidewalk of Willow street, going toward the crossing, and that when she arrived within a few feet of the eastbound track she stopped and waited for the east-bound train to pass, and when it had passed so that the rear of the train was from twelve to seventy-five feet east of the crossing she proceeded across the tracks. The distance between the east and west bound tracks is eight feet. One witness for the plaintiff, who saw the accident, testified that the plaintiff walked slowly, and when she came to the middle between the east-bound and west-bound tracks that she looked both ways, and that when she came to the last track she 163 looked the way from which the train was coming and was then struck. Another witness for the plaintiff, who saw the accident, testified that after the east-bound train had passed about seventyfive feet, the plaintiff looked east and started across the track and was then struck. The defendant's engineer and fireman and eleven other witnesses, all of whom were on the train,

with two exceptions, and eight of whom were defendant's employés, testified that the bell on the locomotive was rung. The plaintiff produced five witnesses who were in the vicinity of the crossing, who testified, in substance, that they were in à position where they could hear the bell if rung and that hey listened for it, but it was not rung, and that no signal of any kind was given. Other witnesses for the plaintiff estified that they did not hear any signals. Eleven witnesses For the defendant, all but two of whom were upon the train, and a majority of whom were the defendant's employés, testiied that the train was running at a speed of from six to -ight miles an hour. The plaintiff produced four witnesses, each of whom were in a position where they could observe he train, and one of them testified that the train was runing fifteen miles an hour; one that it was running twenty niles an hour, and two that it was running from twenty to wenty-five miles an hour. The train was running upgrade, with only twelve or fifteen passengers, and the emergency rakes were fitted to all of the wheels of the train and the rain was stopped, as the jury could have found, in about wo hundred and twenty feet from where the brakes were irst applied. One other fact that the jury could have conidered in determining the defendant's negligence and the laintiff's freedom from contributory negligence, relates to he steam and smoke from the east-bound train that it is laimed concealed the west-bound train. Defendant's engineer estified, in referring to his seeing the plaintiff on track: "I ouldn't see her sooner because there was a very sharp curve here. The curve and the approaching train-some steam rom the approaching train-but the curve had the most to lo hiding my view from her." And he further 164 testified: 'I saw steam from the other engine, the east-bound engine, s I approached the Willow street crossing, and this girl; it ettled; it blew across the west-bound tracks; it cleared up as we approached the girl." The baggage-man, who, after the anger signal was given, opened the door of his baggage-car n the left-hand side and looked toward the locomotive of is train, testified: "Observed nothing on account of the moke and steam escaping from the train that we met there." A passenger referring to the east-bound train said: "I didn't ee the east-bound train because the steam and smoke came in etween the trains." And another that "The smoke and team from that train going down the eastbound interfered

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