The. evidence for the plaintiff shows a lad six years old, and near the middle of the block he attempted to cross the rails, when the defendant’s horse ear was approaching from a point four or five houses distant. The boy was struck by one of the horses and injured. The case was submitted to the jury on this proof, a motion to dismiss the complaint having been denied. Conceding the driver negligent, the child was equally so, and the motion to dismiss should have been granted.
Present: Scott, P. J., Beach and Fitzgerald, JJ.
Judgment reversed and new trial ordered, with costs to abide event.