The infant plaintiff was nine years of age at the time of the accident and was so immature that at the trial, a year and a half thereafter, the court declined to have him sworn, but by consent of counsel permitted him “to be examined * * * without the formality of an oath, regarding the testimony that he may give, as in the form of a statement for the benefit of the jury.” .
The jury could have found from the evidence that the boy, who had been playing upon the street, ran out into the roadway and got upon the south-bound track upon which he proceeded south for thirty feet before he was struck; that the motorman upon the car which was running south had him in plain sight for at least 100 feet; that he did not slacken his speed or ring his bell and that after the car hit the boy it-proceeded 100 feet before it was stopped. With this evidence in mind at the *318close of the charge, the plaintiff’s counsel asked the court to charge “ that if the defendant’s motorman saw this boy on the track, in peril, the boy not looking towards the car, in time for the motorman to stop the car and avoid the accident,'and he did not do that, that then the defendant would be hable, even though the boy or his father were negligent in getting himself on to the track in danger. The Court: I shall not charge it in that way. I will charge it in this way. That if the situation at the time of, or just before the accident, as between the car and the boy, was such that the accident could have been avoided if the motorman had used reasonable care and diligence, then that would justify the jury in finding the defendant had been negligent. I will say further, one may put himself in a dangerous position, an imprudent position, with respect to another, but if the danger can be avoided by reasonable diligence on the part of that other, it stands to reason that he has no right to bring on the accident by failing to exercise that diligence.”
That charge, it seems to me, was clearly right -under the circumstances disclosed, under the doctrine of last clear chance. Thereafter counsel for the defendant said: “ Now, that there may be no mistake on the part of the jurors as to what your Honor means, in response to the request made by plaintiff’s counsel, I understand your Honor to charge that the negligence of the motorman can be established by the fact that the boy was in a place so dangerous, so far ahead of him, that with the exercise of reasonable care he could have stopped; but will your Honor also charge the jury that that does not entitle the plaintiff to a verdict, that if both were negligent, both the boy and the motorman, there cannot be any recovery. The Court: I so charge. [Plaintiff’s counsel]: I except to that.”
That was the last word to the jury and completely annulled and wiped out and destroyed the previously quoted charge made at the request of the plaintiff’s counsel. In other words, the case was finally submitted to the jury on the plain doctrine that contributory negligence would prevent a recovery. In my opinion this was error and of such a character as requires reversal of this judgment. The doctrine of a last clear chance has been frequently applied in this State. In Mallard v. Ninth *319Avenue R. Co. (7 N. Y. Supp. 666) the General Term of the Court of Common Pleas held that a child between nine and ten years of age was attempting to cross Greenwich street at the intersection of Spring street.' There was a crowd of persons on the crosswalk at the time, who stood back to let the approaching car pass; the child stopped about two feet from the car track with her back to the approaching car then fifty feet away, and called to companions on the sidewalk to follow her. There was no obstruction to prevent the driver from seeing the child. He came at a rapid pace, his horse passed the child, who then turned and attempted to cross the track, and was struck by the front platform of the car, run over by,the front wheel, and dragged a short distance by the hind wheel before the car was stopped. The court said: “ This state of facts required the submission to the jury of the question whether the driver of the car exercised ordinary care, under the circumstances. The distance from the track, (two feet) at which the child stood when the car approached may have been a safe distance, providing she remained where she was; and it may be urged that the driver was justified in proceeding without slackening his speed, in view of that circumstance. I think this would be so, if the child had been looking towards the car as it approached, or the driver had any reason to believe that she was aware of the danger of making an attempt to cross, and that she would probably refrain from doing so. • But, as her back was towards him, he must have-seen that there was some hazard that she might not be aware of the approach of the car, and might make some movement that would have put her in danger. He was not to expect the same prudence on her part that he might justly look for from an adult or older person. He was bound to know that she could exercise only the prudence natural to her tender years, and under these circumstances he was bound to exercise care proportioned to the-danger to be avoided; and whether he did so or not was a question for the jury. * * * But in this case the question arises whether the driver of the car, notwithstanding the negligence of the child, could not have prevented the accident by the exercise of ordinary care. If he could, then he was the sole cause of the injury, and the negligence of the child will not prevent a recovery. ‘ The plaintiff may *320recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him.’ Shear. & R. Neg. § 36. Contributory negligence on the part of the plaintiff will not disentitle him to recover damages, if the defendant might, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff. * * * There may be mutual negligence, and yet one party have a right of action against the other. If a man negligently lie down and fall asleep in the middle of the public road, and another, failing to exercise ordinary care, should drive over him, the party injured would have a right of action against the other. Thomas v. Kenyon, 1 Daly, 142.”
And as lately as Bragg v. Central N. E. R. Co. (228 N. Y. 54; 160 App. Div. 603) the Court of Appeals reversed the Appellate Division which had reversed a judgment entered on a verdict for the plaintiff and dismissed the complaint, and affirmed the trial court. In that case a section hand was seated on a tie close to the rails with his head between his knees apparently asleep. He was killed by a train. The track was straight for nearly a mile. The trial court charged that the deceased was guilty of negligence and that there could be no recovery unless the jury was satisfied that after the engineer on the train had actually discovered Bragg in his' position of peril he should in the exercise of ordinary care have stopped his train and so have prevented the accident. The Court of Appeals in its opinion said: "Therefore, assuming as we must under the instruction that Bragg was negligent, we think this one of the few cases where may be applied the rule laid down by the trial judge. Bragg’s negligence was not the proximate cause of his injury.”
In Hallock v. New York, O. & W. R. Co. (197 N. Y. 454) Cullen, Ch. J., said: “ Though it was through his own negligence that the deceased was in a place of danger, this would not excuse the negligence of the train crew in running him down after his dangerous position was apparent.”
In McKeon v. Steinway R. Co. (20 App. Div. 601) the court said: “ When a plaintiff, by his negligence, has placed himself in a dangerous position, the defendant, advised of his *321situation, is not for that reason legally justified in failing to use reasonable care to not injure him.”
In Johnson v. Interborough Rapid Transit Co., as late as July 2, 1920, this court in a unanimous opinion reported in 192 Appellate Division, 639, said: “ It seems to be the settled law in this jurisdiction that, notwithstanding a person may be placed in a position of great peril by reason of his own act of negligence, it is the duty of the one operating a railroad to avoid further injury to him if, by the exercise of ordinary care, he is able to do so.” (Citing cases.)
It should be borne in mind that this accident occurred on the public street and not upon a steam railroad’s right of way. It has been held many times that children have a right to use the streets and to play in them. It was not negligence per se to be on the roadway nor even upon the track and the child running south upon the car track might well suppose that no motorman would run him down on a clear day and with no obstructing vehicles without a warning. But if he did negligently go upon the track so far ahead of this car as might have been found by the evidence that he did, the doctrine of the last clear chance to my mind is applicable and that if seeing him in that position the motorman had used ordinary care the accident would not have occurred. That issue being presented by the evidence, the court having correctly charged the doctrine and then, upon the inducement of the defendant’s attorney, having destroyed it, an error of law is presented which we cannot overlook. For this error the judgments and orders appealed from should be reversed and new trials ordered, with costs to the appellants to abide the event.
Page and Merrell, JJ., concur; Laughlin and Smith, JJ., dissent.