This action was’to recover for injuries caused by the death of'the plaintiff’s intestate. The jury found a verdict for the defendant, whereupon the plaintiff moved to set aside the verdict and grant a new trial, which motion'was granted, and from the order, entered thereon the defendant appeals. The order recites that the motion was granted on the ground that the verdict was contrary to the evidence, against the weight of evidence and. contrary to law.
The deceased was about six years of age, and attended .the kindergarten school. On the 8th of June, 1904, the deceased’s mother took her across the street and left her there with some other children playing in a kitchen. The deceased was in the habit of going into the street alone, but'had been instructed by her mother to be careful when crossing ■ the street and to ■ stop if she saw a car approaching. As to the accident, a witness testified that he was in Cannon street and saw a car coming very fast —a closed car with-two horses; that as the car passed him he heard 'the people halloo “ Hey, stop that when he first saw the driver standing on the car, the witness did not know what he was directing his attention to) *162But lie was looking straight ahead. He then said tliat his head was turned to the right side or the left side-; that" when he heard the. people halloo, he stopped and looked, around, and saw a little girl - coming off the sidewalk ; that as soon as she.came off the sidewalk" some one was hallooing for the horses to stop. ■ She stopped in a kind of fright; “all of a sudden the car came down, and; he started to pull the horses backwards, and he ■ did. As soon as he pulled the horses backward,, one horse went out- of - the. way, out' of the tracks, and throwéd the little girl away towards this way, and the little girl was struck by the car.” It thus appeared that the child stopped before going on the track; that when the driver was endeavoring to stop the car the horses left the track and struck the child, when she fell and rolled under the ear. The car'stopped immédiately, showing that it was under control This witness "subsequently testified that the horses were jogging along, the car going at the speed that horse cars usually go. It was" the duty of the driver, when the child started to cross the track, to stop the car to avoid a collision. This the driver attempted to do. To. stop the car he had to put bn the brake, and there was nothing to show that he did not do all that a person could have • done under the circumstances.. There was no evidence offered by" the defendant the question.being submitted to the jury upon the plaintiff’s evidence.
This was not a case in which there was conflicting evidence-where the trial judge had the advantage of seeing the witnesses testify and observing the manner in which they gave their testimony, but-here, upon a conceded state of facts, the question as to "the negligence of the defendant was presented. I do- not think there was evidence to-sustain a finding that the defendant was,-negligent. There is nothing in relation to the sjieed of the car-that justified a finding of negligence. The fact that the driver of the car was seen looking away from the track in front of the car was not negligence. The driver has to watch for passengers and approaching vehicles so as to avoid collision, as well as to watch the track immediately in front of the car, and .there is nothing to show that this driver was • not attending to his business and had full control of "the car. But there is nothing to conñéct this accident with the driver’s looking the other way. If he had been looking at the child -and saw it. approaching he could have done no more than he did, i. e., at once "try *163to stop the car. The driver does not appear to have .been responsible for the fact that a horse shied off the track. This would seem to be one of the accidents which are not caused by the negligence of the driver and for which the defendant cannot be said to be responsible. If, however, there was evidence which: justified, the court in submitting the question of defendant’s negligence to the jury they were certainly justified in finding that the accident was not caused by the defendant’s negligence and the court was not justified in substituting its judgment for that of the jury. There was no error in the charge as to contributory negligence. It is the settled rule in tins State that 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 and required of an adult under like circumstances, but she is required to exercise such care and prudence as is commensurate with one of her age and intelligence. (Serano v. N. Y. C. & H. R. R. R. Co., 188 N. Y. 156; Costello v. Third Ave. R. R. Co., 161 id. 317.)
I think, therefore, it was error for the court to set -aside the verdict and grant a new trial. - The order appealed from should be reversed and the verdict of the jury be reinstated, with costs.
Clarke, Scott and Lambert, JJ., concurred; Laughlin, J., dissented.