I dissent from the opinion of Mr. Justice Burr, for it seems to me that, unless we are to hold that the most unfavorable view which the jury might have taken of the evidence is to be deemed established in spite of the verdict in favor of the plaintiff, there is no ground for a reversal of this judgment. On the 6th day of October, 1906, the plaintiff, then about fourteen years of age, came from Norwalk, Conn., with his father, uncle and other relatives, to witness the automobile race, commonly known as the Vanderbilt Cup Races, at Long Island, and took up a position at or near the junction of the highways known as the Oyster Bay road, Jericho turnpike and East Norwich road. The board of supervisors of Nassau county had, by resolution, set apart certain highways for the purposes of these contests, among them being the Jericho road and the Roslyn road (so called), the former road running generally north and south and the latter ■ east and west. These roads crossed at right angles at East Norwich Corners, and as the races in question were conducted the cars came from the south, running north, turning at right angles to the west into the Roslyn road at the point of intersection. The Jericho road continues north from East Norwich Corners, with a deflection, and is known from that point as Oyster Bay road, and several other roads converge at or near East Norwich Corners. The Oyster Bay road was not included in the roads set apart for these races; it was open to general use as a highway, and the plaintiff’s theory of the case, which has been accepted as the true one by the jury, and which is amply supported by the evidence, is that he had, after witnessing several events, gone with his brother and some cousins to a tire-repairing shop a short distance away, *604leaving his father and others at the junction of the roads upon a horse block, from which they were watching the events, and that when he had completed his errand at the repair shop he started to return to the place where he had left his father; that just as he had reached a point about one-half the way across Oyster Bay road, and while about twenty feet from the line of the Jericho road, a warning was given that the cars were coming, and that he continued on his way, when the.crowd opened and the defendant’s automobile, which was participating in a 'race, dashed into "Oyster Bay road, instead of turning the corner into Roslyn road, and knocked him down, doing the injuries for which he has recovered a verdict of $7,000. It is urged on appeal, and members of this court seem to agree with the contention, that the plaintiff was guilty of contributory negligence as a matter of law, because it is said that he knew the danger; that his father had warned him not to remain in Oyster Bay road, and that this boy of fourteen years of age was somewhat familiar with automobiles, and knew of their tendency to skid in rounding corners, etc., and the defendant asserts that the plaintiff was not invited to be at these races. But the plaintiff did not require an invitation to be present in the open, public highways of this State. His version is that he was in the act of crossing Oyster Bay road, where he had an absolute right to be, and the mere fact that his father had cautioned him not to remain in that road, because it was dangerous, did not in any manner detract from his lawful right to make use of that highway in going to the repair shop or in returning to-his father. The place may have been dangerous for a boy of fourteen in the apprehension of a father, simply because of the presence of a crowd and the excitement of the occasion, but it is nowhere suggested that the father liad warned him against the danger of the automobiles leaving the course which had been set aside for their use, or that the father apprehended any such danger. The plaintiff testitied that he had seen perhaps a hundred turns of this same corner made prior to the accident; that the defendant’s own driver had made several of these turns in safety, and if the cars followed the course in the usual order, the plaintiff was in a perfectly safe place, so far as the danger of being run over by the racing machines was concerned, and he had a right to rely upon the defendant operating its machine in such a reasonably safe manner *605that it would not leave the course. The defendant’s car and many other cars had passed around this corner in safety. Why was it negligent for this plaintiff to cross Oyster Bay road, twenty feet outside of the course, assuming that he knew a car was approaching at a high rate of speed, when he was aware that the course ran into Roslyn road, and that all of the cars had previous to this time made the turn without accident? Was he, as a matter of law, bound to take notice that this particular car would not make the turn ? Was he bound to assume that the defendant’s driver would be negligent at this particular time, although he had not ’been on five or six other occasions ? It appeal’s conclusively from the evidence that there were many other people stationed in Oyster Bay road, and that which many persons are permitted to do, and which they do in the ordinary course of the day’s doings, can hardly be said to constitute in one that absence of reasonable care which a person of ordinary prudence could or should have exercised under the circumstances. The many people who were in front of the plaintiff, for he testifies that he was crossing in the rear of the crowd, evidently did not regard the place as dangerous; they clearly did not anticipate that the defendant’s driver would so operate his car as to drive headlong into Oyster Bay road, which was open and free to public travel, and yet we are asked to hold that this boy of fourteen, returning to his father after an errand which carried him across Oyster Bay road, was guilty as a matter of law of negligence contributing to his injuries. It might as well be urged that he was guilty of contributory negligence because he left his home in Connecticut to come to the races. If he had stayed at home he would not have been injured from this particular automobile in this particular way, and it was culpably careless in him to bring his person within the jurisdiction of the State of Hew York on a day -when the defendant wanted to make use of the highways of Long Island for an advertising exhibition of its motor car.
But it is said this boy was familiar with automobiles; that he . knew of the danger of the cars skidding in making tarns under high speed, and this may all be conceded, but there is no evidence in this case that the defendant’s car skidded, or that the accident was due to skidding. The evidence is that the car, instead of making the turn, which might have involved skidding, went nearly straight *606forward; that it followed the course of Jericho road and forward into Oyster Bay road, and the accident happened, not because of skidding, but because the defendant’s operator did not have his car under sufficient control to make the turn which he was expected to make, and I undertake to say that not one man in an hundred, who had watched the events of that day as this boy had done, would have thought of being in danger at the point where this boy was standing, if he had seen the defendant’s car coming down the Jericho road as this boy says he saw it. He had seen the turn made time after time, not only by the defendant’s operator, but by many others, and he had no more reason for anticipating the special danger which overtook him than people in a circus have of being overrun by the horses in the exciting chariot races. I think the law is well established that no one is negligent as a matter of law because he has not anticipated negligence on the part of others and taken steps to avoid it, and unless we are to ignore the evidence in this case and hold this boy to a degree of care not exacted of people in general, the verdict ought not to be set aside on the ground of contributory negligence.
I have examined the other questions in the case, and I am persuaded that there are no errors calling for a reversal of this judgment. Taking the plaintiff’s version of the facts, and they are by far the best supported in the evidence, the plaintiff conducted himself with that degree of prudence which might fairly be expected, not only of a boy of his years, but of an ordinarily prudent man. He was where he had a perfect lawful right to be; he had a right to be where he was whether the races were going on or not. If he had come along there incidentally as an ordinary traveler he would have been perfectly within his rights at the point where the accident occurred, as shown by the great weight of evidence, and the suggestion by the appellant that he was not invited there ii> little short of an impertinence. He had absolutely nothing to fear -from the defendant’s automobile so long as it was confined to the course which was set apart for its special use in racing, and as against any one lawfully in Oyster Bay road the defendant was bound to so operate its machine as not to invade that highway at racing speed, or in disregard of the rights of those who were there. It is not seriously questioned that the defendant negligently operated the *607car, and it was only because of this negligence that any one could have been injured in Oyster Bay road by this particular automobile on this particular occasion. To charge responsibility upon this boy, who was out of reach of the particular harm, except for the defendant’s negligence, is to make a travesty of justice, and for my own part I cannot concur in such a result.
The judgment and order appealed from should be affirmed, with costs.
Hirschberg, J., concurred.
Judgment and order reversed on reargument, and new trial granted, costs to abide the event.