The action was brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The order dismissing the complaint was made at the close of the plaintiff’s evidence, no evidence having been given on the part of the defendant. In passing upon the correctness of this order, we are required to give the plaintiff the benefit of the most favorable findings of fact, which the jury would have been justified in making from the evidence. Having this rule in view, the facts were as follows : The deceased was a bright, intelligent
boy, seven years and eight months old, and lived with his parents on Fortieth street, west of Tenth avenue, New York city. He was sent by his mother, at four-forty-five p. m., on an errand, which required him to go to a store on the east side of Tenth avenue,between Fortieth and Forty-first streets. After doing the errand the boy started to return to his home. There were two street car tracks lying substantially in the center of Tenth avenue. The boy attempted to cross Tenth avenue from east to west, near the northerly crosswalk, at Fortieth street. The pavement on the easterly side of the tracks in Tenth avenue was torn up and being repaired, so that teams were obliged to pass along the avenue on the westerly side of the tracks. As the boy approached the tracks a belt line car (so called) was passing along towards the south on the westerly track, and about twenty feet behind it was the defendant’s car, also going south on the same track. On the westerly side of the belt line car, and four or *264five feet from it, was a cart loaded with stone, which was being driven northerly along Tenth avenue. The boy crossed the easterly track, and went upon the westerly track behind the belt line car, and about six feet in front of the horses drawing the defendant’s car. He. was walking quickly, but not running. The car was going about six miles an hour. The driver had the lines in one hand and his other hand on the brake. He did not apply the brake or slow down the car at all, but swung his horses towards the east to avoid their striking the boy. The car passed along and the dashboard struck the boy, who was then just at the west side of the track, and threw him to the ground under the cart loaded with stone, which was then near by, and before the boy could get away the wheel of the cart passed over him causing his death.
Upon these facts, there would seem to be no doubt but that the questions of the negligence of the defendant and the absence of contributory negligence of the deceased were for the jury and not for the court. The boy was clearly of sufficient age and intelligence to be chargeable ,with his own negligence, but he was a boy of tender years and not a mature man. It is well settled that a boy of his age would not be chargeable with the same degree of care as a mature man would be (Stone v. Dry Dock, etc., R. R. Co., 115 N. Y. 104), and we think the age of the boy must' also be considered in determining the degree of care which, if exercised by the driver of the car, would relieve the defendant from the charge of negligence. It was the duty of the driver to exercise such degree of care as was commensurate with the danger to be apprehended, and clearly more danger was to be apprehended by reason of the tender age of the boy than if he had been a mature man. The jury would have been justified in finding that the driver was negligent, under the circumstances, in not applying the brake and slowing down the car; that he saw the boy and was in a position to see all the danger surrounding him, and especially the presence of the cart loaded with stone, moving northerly, and before it passed the belt line car, so as to be visible to the boy ; that these dangers were visible to him in time to have enabled him to apply the brake, slow down his car, and so avoid any accident; that it was his duty to do this; that he could do it; that he neglected to do it, and was, therefore, guilty of negligence.
*265The jury would have been justified in finding that the boy was free from contributory negligence in attempting to cross the avenue and the tracks of the street railroad at the time and place he did; that when he started to cross the tracks there was apparently a clear way and a reasonable opportunity to cross safely, at least in the judgment of a boy of his tender years; that there was an open space of twenty feet between the two cars, and that the cart loaded with stone was hidden from his view behind the belt line car; that when he was part way across the track his passage was cut off by the loaded cart, and though he had actually crossed over the west track in front of the horses, that he believed dt better to stop and let the cart pass than attempt to go farther and risk the danger of passing in front of the cart; that he was in a place of danger and did the best he could, under the circumstances, to avoid injury; that he was so in danger by reason of the negligence of the driver in not applying the brake and slowing down the car, and that, under all the circumstances surrounding him, he exercised as much care and caution to avoid accident and injury as a reasonably careful and prudent person of his tender years would have done, and if the jury found this, then they might well find that he was free from contributory negligence.
It is well settled that the rules as to the respective duties of foot passengers and street railroad companies, as to the crossing of the tracks, are different from the rules applicable to travelers in the highway and companies owning steam railroads crossing such highways. In the case of steam railroads the travelers along the highway must, when they see a train approaching, wait for the train to pass before attempting to cross over, but in the case of street railroads foot passengers may cross over, though they see cars coming. They must exercise care in so doing, and the street car driver must exercise care also. Each must exercise such care as the circumstances of the particular case require, and the want of proper care on the part of either is ordinarily a question of fact for the jury, in view of all the circumstances surrounding them. The jury are to consider the evidence, and to draw the inferences therefrom, and their judgment, and not that of the court, is to be taken as to the question of negligence and contributory negligence.
*266There are cases in which the evidence is such that no inference can be drawn by the jury other than that in a single direction, and then the court may and should take the case from the jury, and itself determine the facts and direct the verdict and judgment. This, we think, was not such a case. The questions of fact here were for the jury, and the case was improperly taken from their consideration.
It is said that it was impossible for the driver of the car, after he saw the boy crossing the tracks, to apply the brake and slow down the car, and at the same time turn his horses’ heads so as to prevent the horses from striking the boy. This was a question of fact for the. jury and not for the court. He held the lines in one hand and the other hand was upon the brake. He saw or could have seen the boy when he started to cross the west track. The boy was then six feet from tire horses’ heads. He might have acted at once, using one hand in turning the horses, and the other in applying the brake Certainly it was for the jury to determine whether he could or not. The driver was not himself sworn. He did not testify that he could not do this. Until he had spoken upon the subject, the court could not say as a matter of law that he could not do this. It was at most a matter of inference to be drawn from the circumstances, and the jury, and not the court, were to draw the inference the one way or the other. It is said that some of the witnesses gave their opinions on the subject. Their evidence was in answer to questions formulated by the defendant’s counsel, he putting the words in their mouths, but at all events their opinions were not conclusive; the conclusion was to be drawn by the jury, and the evidence of the opinions of witnesses could at most aid the jury, and did not conclude them as to the determination at which they should arrive.
The driver might well have refused to say, when sworn, that he could not have turned the horses’ heads and operated the brake at the same time. Hntil he had been heard on the subject certainly the question was not one which the court could take from the jury and itself determine.
Again, it is said the driver was called upon to act suddenly, and used his best judgment under the exigencies of the occasion, and was not guilty of negligence for an error in judgment as to which was the best course to adopt. But the court had no power to determine that *267his action was merely an error in judgment when called upon to act in an emergency. He saw, or should have seen, the hoy when six feet in front oi the horses, that is, at the moment when he went upon the west track. Before the boy had fully passed over the track the horses’ heads had come so close to him that it was necessary to turn their heads to avoid striking him. The jury might find that due care on the driver’s part required him to apply the brake and slow down the car as soon as he saw the boy was stepping upon the track. How could the court say that the driver could not have done this before the horses’ heads came so near to the boy % Certainly until the driver had been sworn and testified that he did not see the boy until his horses’ heads were near him, until he asserted that his action was in accordance with his best judgment under the circumstances, the court could not take the question of inference from the jury and say that the driver’s failure to apply the brake was an error in judgment under the sudden exigencies of the occasion, and was not the result of his voluntary failure to apply the brake and slow down the car. In any view of the case, the question of the defendant’s negligence was one of fact for the jury, and not of law for the court.
The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.
O’Brien, J., concurred.
Judgment affirmed, with costs.