Ho exceptions are taken to the charge of the judge or to the admission or rejection of evidence.
The only reasons urged for granting a new trial are:
1st. That-plaintiff should have been nonsuited because no negligence was shown on the part of the defendant.
2d. That'upon the evidence plaintiff’s intestate was guilty of contributory negligence whereby the injury occurred.
Upon the first proposition there was conflicting evidence in relation to the ringing of the bells by defendant’s servants that could only be decided by the jury.
Upon the second proposition no positive evidence is given upon either side. Contributory negligence must be proved. Had the *646deceased been of full age and possessed of ordinary faculties and intelligence, he would probably have been held guilty of contributory negligence, which would have prevented a recovery under the authority of Wilcox v. Rome, etc., R. R. Co., 39 N. Y. 366; Gonzales v. N. Y. & H. R. R. Co., 38 id. 442; Beisieigel v. N. Y. C. R. R. Co., 40 id. 22; Grippen v. N. Y. C. R. R. Co., id. 51; Haight v. N. Y. C. R. R. Co., 7 Lans. 11, because for ten feet before the deceased reached the track upon which he was struck he had an unobstructed view of that track for 750 feet or over in the direction from which the train came.
Does the fact that the deceased was a boy of only 12 years of age change the rule ?
It is contended by the plaintiff that deceased was to exercise care only in proportion to his age and mental and physical ability, that the same care and discretion is not exacted of a boy 12 years of age as in case of a man of mature years. That in this case the rule is and should be that he shall exercise such care as a person of his age, of ordinary prudence, would exercise under like circumstances. In support of this proposition, the following, cases are cited: Costello v. S. B. & N. Y. R. R. Co., 8 Alb. Law Jour: 45; Mowry v. Central City R. R. Co., id. 125; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; O'Mara v. H. R. R. R. Co., id. 445.
In hostility to such a doctrine, we are cited to the case of Honegsberger v. Second Av. R. R. Co., 1 Keyes, 570. The weight of authority would seem to be upon the side of the plaintiff.
The question of negligence under such a rule depends upon so many circumstances, and is of such a complex character, that it would be difficult, if not impossible, in a case like this, to say, as matter of law, what constitutes it. For this reason, if the fact of the negligence of deceased is doubtful and uncertain, the submission of the question in a proper manner to the decision' of a jury ought not to be held to be error. Dickens v. N. Y. C. R. R. Co., 1 Keyes, 23, 28; O'Mara v. H. R. R. R. Co., ante.
By an examination of the charge it will be seen that such disposition was made of the question by the learned judge in a very prudent and careful manner.
The order denying motion for a new trial upon the minutes should be affirmed, and the motion for a new trial upon the case and exceptions should be denied, with costs to the plaintiff.
Ordered accordingly.