This action was brought by Mathias Meyer, as guardian ad litem, to recover damages for personal injuries alleged to have been sustained by John Zwack, an infant, by reason of his coming into collision with a train upon the defendant’s railroad, at a point where such road crosses a public highway in the city of Buffalo, known as “Hydraulic Street.” The undisputed evidence in the case shows that at this crossing there are two main tracks, running east and west; that north of the main tracks there are four side tracks; and that south of the main tracks there are five or six side tracks, but two of which actually cross Hydraulic street. The accident occurred at about noon, on the 24th day of October, 1894, at which time Zwack had started from his home to go to school. He testified that, as he walked along towards the railroad, he was eating some bread and sausage, which he carried in his hand. He approached the railroad crossing along a plank walk which extended through Hydraulic street, and over the defendant’s tracks, until he came to the first side track or switch which crossed Hydraulic street. He testifies that, when he reached that point, he looked both ways, and saw two engines going east upon main track Ho. 1; that he stopped until they had passed east of the crossing, and then started ahead, and, when he reached the second main track, he was struck; and the evidence is that the engine which struck him was attached to a passenger train going west upon main track Ho. 2, which was moving at the rate of from 20 to 25 miles an hour. The plaintiff’s principal witness, and the only one who was in a position to see the entire occurrence, was Daniel Zink, who was riding upon one of the two engines, which, it appears, were attached together, as they passed over this highway; and he testifies that he observed the boy" standing in the center of the side track south of the main tracks, as the engine passed by; that, as soon as they had passed over the highway, he started upon a run, or, as he expressed it, “The boy made a rush across, and was struck by the Erie passenger train;” and he further testified that, “from the time he started to cross these tracks, he didn’t stop and turn his head or look either way, at all, but he looked right straight ahead, and that is the way he got run into.” Ho other witness, save the boy himself, attempts to testify to what took place immediately preceding the accident, and the case is utterly destitute of any evidence which tends to show that, *826after starting from the point where he first stopped, the boy did look in either direction. There is some evidence that there were some freight cars standing upon one or more of these "side tracks, but upon which one does not appear; and the evidence upon this subject is not at all clear. However, in the view which I take of the case, it is difficult to see how the presence of these cars upon either of the side tracks is a matter of very much consequence, for one has but to look at the map to see that, after the plaintiff had passed over the north side track, there was a distance of at least 20 feet between the north rail of that track and the south rail of the second main track, and that, while passing over this distance, the cars standing upon any one of the side tracks could not by any possibility have obstructed the view of the train approaching from the east; and the witness Zink swears that, as he was riding upon one of these-engines, the boy was in plain sight all the time until he was struck.
We therefore have this state of facts upon which the plaintiff seeks to .recover damages against the defendant: A boy between 10 and 11 years of age, attempting to cross a railroad track with which he was perfectly familiar, and over which he was accustomed to travel every day, stopping at a point 20 to 25 feet from the main track, in order to allow two engines from the west to pass by, and as soon as they had crossed the highway, without taking the trouble to look in either direction to observe whether any other train was approaching, starting upon a run in a heedless, boy-like way, rushing headlong into a train approaching from the east, which he might easily have seen and avoided had he looked at any time after passing over the last side track, inasmuch as, while he was running a distance of at least 20 feet, the train was unquestionably in plain sight, with no intervening object to obscure the same, save these two engines, which could not possibly have prevented his seeing some portion of the approaching train had he looked to the easr. Certainly, such recklessness as was displayed by this boy would have been sufficient to have prevented a recovery upon the part of an adult; and, inasmuch as the case was tried and submitted to the jury upon the theory that the boy was sui juris, I can see no reason why he should not be held to the same degree of accountability as he would had he been 20 instead of 10 years of age. Fowler v. Railroad Co., 74 Hun, 141, 26 N. Y. Supp. 218; Tucker v. Railroad Co., 124 N. Y. 308, 26 N. E. 916.
I am of the opinion, therefore, that error was committed by the trial court in submitting the question of contributory negligence to the jury, and that, in consequence of such error, a new trial shoulu be directed, and for this reason am unable to concur in me views expressed in the prevailing opinion.