I reach the same conclusion as that of Mr. Justice Bartlett, because I am persuaded that the record in this case does not raise the questions presented upon defendant’s brief in reference to the evidence respecting the use of a fender upon the car producing the injury. The rule was laid down in Steinweg v. Erie Railway (43 N. Y. 123, 126) that the defendant “ was guilty of negligence, if it adopted not the most approved modes of construction and machinery in known use, in the business; and the best precautions in known practical usé for securing safety. If there was known and in use any apparatus which, applied to an engine, would enable it to consume its own sparks, and thus prevent the emission of them, to the consequent ignition of combustible property in the appellant’s charge, it was negligent, if it did not avail itself of such apparatus. But it was not bound to use every possible prevention which the highest scientific skill might have suggested, nor to adopt an Untried machine or mode of construction,” and this rule has been recognized and applied in various cases, involving damages from sparks emitted by locomotives and producing fires upon adjacent premises. (Babcock v. Fitchburg R. R. Co., 67 Hun, 469, 471, reversed upon another point, without criticism of the rule, 140 N. Y. 308; see dis*560senting opinion by O’Brien, J., at pp. 318, 319, and authorities there cited.) It is true, of course, that fenders have been used in some cities by. reason of ordinances prescribing their use, and it is admitted that their use has been disappointing, and that they have not accomplished all that was expected of them. There is no evidence in this case that they have ever been used as the result of practical experience, demonstrating their greater safety, and the mere fact that they have been in Use in New York and Brooklyn, under the provisions of ordinances, does not warrant a jury in finding that it was negligent for this defendant to operate its cars upon a suburban line without fenders. To make the evidence at all -.relevant in this action, it was necessary at- least to show that a car with a fender was. safer and that plaintiff’s intestate would have been less liable to have been injured had there been a fender (Babcock v. Fitchburg R. R. Co., 140 N. Y. 308, 312), but no such evidence was produced, and the jury were permitted to consider the evidence upon the theory that it had some bearing upon the question of defendant’s negligence. It is entirely obvious from the evidence in this case that the question of the presence or absence of a fender was of no possible consequence, unless ft be to permit the jury to speculate as to the relative injuries which might have resulted. The weight of evidence is that the car was running at the rate of twenty miles an hour, that the plaintiff’s intestate stepped upon the track within a few feet of the car, and that it struck him before the speed had been reduced at all, or practically so. Traveling at this rate it could make little difference to the boy whether there Was a fender or not. The fender had nothing to do with the control of the car; its only purpose was to minimize the results of an, accident, and whether the plaintiff’s intestate was killed or merely injured had no relation to the question of defendant’s liability — to the question of its negligence. The question at issue is not whether the boy might have been less injured, but whether the defendant was negligent in the operation of its car, and whether the car canned a fender or not had no bearing whatever upon this issue. If the defendant had seasonably objected to this testimony, and preserved its rights by an exception^ or if it had excepted to the charge of the learned trial justice, I should have been disposed to hold that, there was reversible error in this case.
*561If the fender was designed for controlling the car; if it was in the nature of a brake or emergency appliance, intended to stop the ear upon short notice, and the evidence had tended to show that it .was an appliance which common use had approved, and there had' been evidence to show that with its use the car might have been stopped in time to avert the accident, it would constitute a proper element in the case; but to hold that the defendant maybe charged with negligence for not using an appliance which is merely intended to mitigate the results of an accident, where there is no evidence to show even that this result might have been accomplished, is carrying the doctrine of liability beyond any point sanctioned by authority. Under the plaintiff’s theory and evidence, the boy would have been hit by this car whether equipped with a fender or not; if the car was running at twenty miles an hour he must, inevitably, have been seriously injured, if not killed, and the extent of the injuries has no bearing whatever upon the question of the defendant’s negligence in so. operating the car that it came in contact with the plaintiff’s intestate. The extent of the injuries determines the measure of damages and the character of action, but not the primary question of actionable negligence; that depends upon the degree of care used in the operation of the car under the circumstances surrounding the accident. The defendant, being liable for the contact with the boy, the absence of the fender, assuming that it would have lessened the injuries, simply imposes a different measure of damages than that which would have otherwise prevailed. In other words, I do not think a fender is such an appliance as goes to the question of negligence, but is merely designed for the purpose of lessening the liability in the event of an accident, , and as such it has no place in the case as a foundation for the jury to predicate negligence in the. operation or construction of the car.
Judgment and order unanimously affirmed, with costs, upon the opinion of Bartlett, J.