This was an action to recover damages for the negligence of an employee of the defendant, which resulted in a serious injury to-the infant plaintiff. The complaint was dismissed at the close of the plaintiff’s case. In considering this appeal, therefore, all facts, which the evidence tends to establish and all fair inferences which the jury might have drawn from the testimony in favor of the plaintiff, must be resolved in his favor (Rehberg v. Mayor, 91 N. Y. 137,141), and the only question is whether, upon those facts and from such inferences, the jury would have been justified in finding a verdict for the plaintiff.
' The plaintiff was- a boy five years and two months old; he had been going-to school for about a month; the accident occurred at noon; he was on his way home and had met his mother in front of. the house where they lived; she gave him a penny with which to buy some candy at a stall across the street, and he had doné so- - and was on his way back to her when the accident took place.
It occurred in Rivington street. It may fairly be inferred from the evidence that this is not a business street, but that there stand upon it many tenement houses in which live a large number of children. The testimony is that at the time of the accident the street was crowded with children coming home from school. There stood at the side of the street a horse and cart, into which one of the employees of the defendant was engaged in emptying ashes. The-horse was standing still; the boy in going to his mother ran closely in front of him, and, jnst as the child got in front of the horse, the driver not seeing the boy started the horse, which at his first step knocked the boy down so that the wheel of the cart passed over his leg and he was injured. No question of the contributory negligence of the boy or his mother was raised, and that clearly in any case would be a question for the jury.
*287The only question is, whether it can be said that the driver was guilty of negligence in starting his horse without looking to see that it was safe to do so. What is due care in such cases depends entirely upon the condition of affairs at the time the occurrence took place. This driver was engaged in emptying ash cans into his cart; when he finished emptying the particular can he did not look to see what, if anything, was in front of his horse before starting him up. Under-ordinary circumstances it may be that he was not called upon to do so, but there were some other facts in this case which may take it out of the ordinary rule. The time was at noon; the children were just out of school and the street was full of them. Under such circumstances, a person who has occasion to drive a horse on such a street is bound to take notice of the fact that the children are there and to see that no harm comes to them from anything he does. The care they-Were bound to exercise was only such as persons of their age would be likely to take, and the care of the person driving the horse must be proportionate to the exigency confronting him. So that if he had been surrounded by adults, or if he had not been aware that there were children in the street, it may be that he would not have been called upon to see whether any child might be hurt when he started up his horse, yet as he knew that the street was full of children as must be assumed from the evidence, we cannot say that in starting up his horse as he did without looking to see whether there were any children in such a situation that they might be injured thereby, he used that degree of care which the circumstances imposed upon him.
For this reason we think that the question of the driver’s negligence was one for the jury, and that the learned justice below erred in taking it away from them. The judgment must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the result.
Patterson, O’Brien and McLaughlin, JJ., concurred; Yan Brunt, P. J., dissented.