The deceased was a bright, intelligent boy, had attended public school two years ; had had considerable experiences in the city of Elmira and other cities in crossing street railways, and appreciated to some extent the necessity for caution. His father-testified that he had told him repeatedly he should exercise care in being about railroad tracks and that he “ considered him of sufficient age to lock out for himself.”
The accident occurred some distance from the street crossing on the 18th day of February, 1908, between eleven and twelve o’clock in the forenoon. The only witnesses who saw the accident were three of his companions. Two of them testified that the deceased was struck by the fender as he reached the track ; the other one testified that he saw him stumble on the street car track and fall down eight or ten feet from the car. According to all of these witnesses he ran suddenly and directly from the sidewalk to the track, a distance of sixteen and one-tenth feet, and that he did not have sufficient time to cross the track when he attempted to do so. One of the witnesses testified: “ I noticed which way he was looking when he ran. When he ran in front of the car he was looking towards that way. * * * That was towards the car. * * * Q. And when he ran didn’t he look right straight ahead ? A. Yes sir, right towards the big brick building; he didn’t stop to look to see if any cars were coming * * * or not. * . * * He had a stocking cap pulled down over his ears. * * * He did not stop to look, towards the car * * * or any other way, * * * but started and ran right across.” ■
Ho testimony was given tending to show that the boy looked to the right or the left before attempting to cross, or that he exercised the slightest care to ascertain whether it was safe to make the *198attempt. It appeared that there was nothing between the curb and track, a distance of twelve and five-tenths feet, to interfere with his seeing the. approaching car; that it was in plain sight of the deceased and moving slowly. There was no evidence as to how fast the boy was going, but it would be entirely consistent with human experience to assume that he traveled at the rate of four miles an hour. ( White v. Albany Railway, 35 App. Div. 26.) At that rate he reached the track, along which the car was coming, in less than three seconds.
There was no proof that the mótorman saw the boy as he .approached the track, but if we assume that he did, the testimony as to the close proximity of the car, and that it “ would not take over ten or fifteen seconds” to drop the fender if “ everything was in. good working condition,” forbids the conclusion that the motorman could by the exercise of care have stopped the car or dropped the fender in time to prevent the accident.
I think that the plaintiff failed to show, either by direct proof or from the circumstances, that the accident was caused solely by the negligence of the defendant, but apart from that question there was not enough to go to the jury upon the question of negligence of the plaintiff’s intestate, in that it clearly appeared that' his failure to observe the slightest care or precaution contributed to the accident, if it was not the proximate cause.
It is true that a child of tender years is not required to exercise the same degree of .prudence in the. presence of danger which is expected of an adult under like circumstances, but it seems to be well settled that he is not in law excluded from exercising some care in approaching and passing known places of danger. (Sobol v. Union Railway Co., 122 App. Div. 817; Weiss v. Met. Street R. Co., 33 id. 221; affd., 165 N. Y. 665; Fenton v. Second Ave. R. R. Co., 126 id. 625.)
I am of opinion, therefore, that the complaint was properly dismissed and that the judgment should be affirmed, with costs.
Chester, J., concurred.
Judgment reversed and new trial granted, with costs to- appellant to abide event.