—The appellants claimed upon the arguméut, that it was a matter of right to have the-issue of negligence submitted to the jury, where it depends on inferences to be derived from a variety of circumstances^ in regard to which -there is room for a fair difference of opinion between intelligent and upright ■ men.” That- all the circumstances of this case should have been submitted to the jury, so that they might have determined how' far such circumstances tended to establish the ■ assumed fact of -negligence on the part of the plaintiff and that plaintiff’s extreme youth obligated defendants to use extra care and caution to avoid inflicting injury. ■
On the part of the respondents it was claimed, that there was no negligence on the part of the defendants, but on the 'contrary, that the evidence tended to show that the driver of the car used great diligence to prevent the- accident, and that the negligence of the plaintiff is self-evident. 1 -
The question arises, whether this is a case that should have been left to the jury. It is undoubtedly true, that when the negligence of the plaintiff is clearly shown, there may be occasions, when it becomes the duty of the judge-to dismiss -the complaint: But it does not appear that this is a case of that character. ' The evidence shows, that the car Was being driven at an unusual and rapid rate of speed, up an ’ascending grade, that the driver was leaning back on the front platform, shaking his loose reins. It was noon, his *409view was unobstructed, and when he stopped the car, the front wheel had passed over the plaintiff. As the plaintiff approached the track passing over the westerly track first, the car was ninety or one hundred feet off. It could have been stopped in from sixteen to twenty-two feet. A careful driver, with proper control of reins and brakes, could have avoided the collision. With reins held taut, the driver could have sheered the' horses off the track and prevented the knocking down, by the off horse, of the plaintiff as he passed over the easterly rail of the track. A proper control and use of the brake could have certainly stopped the car a fraction of a second sooner, which would have prevented the wheel passing over the plaintiff. It looks as if the driver did not get himself in a position to stop the car until the horse was upon the plaintiff and then it was too late to arrest its motion by some five or six feet, so as to save plaintiff from the- wheel. An adult might be deceived in the rate of approach and speed of a street-car driven unusually rapid, and least of all at such a time, should the driver be as the witness testifies, “ carelessly in front of the car, the lines in both hands shaking them.” Apparently urging his horses to a still higher rate of speed.
His duty was' to have the reins and brake in his control, and to drive in a careful and usual manner. It is impossible to conceive that a man, put in so responsible a position by the defendants, would wantonly drive.over a child, but it looks very much as though he was driving in an inconsiderate and negligent manner. The negligence, if any, of the plaintiff crossing the avenue, led by the hand of another child of maturer years, under these circumstances is not so apparent as the respondents claim. On the contrary it seems difficult to see wherein it consists. An adult acting with reasonable prudence, might be deceived by unusual and careless driving and run over in consequence of it.
It would be a retrograde movement in civilization, to establish a'rule, that those who obtain the privilege of run*410nihg horse-cars on railways fchrohgh the streets of a.crowded city, can run them without some observance of care. .an<d protection towards those whom old age, infirmity or tender years, commend to- universal consideration.and care, - ■, ; ,
The theory that the cars in such a case would be a longer time in making .their trips and that children should.be. kepi; in the house, or under the care • of- some . suitable protector when they go in the streets, has no controlling, force. • The idea of feudality, that the footman must keep , out of the way of the horseman, has given place in the most enlightened and civilized cities of the world to a careful and practical consideration for the pedestrian, increasing in proportion to personal incapacity. The concession of privileges to increase the means of communication through the streets of a city,.does not, even by implication, waive any privilege of- personal safety to the .citizen and his household. Their rights and welfare are not relinquished to favor any increase of speed. • .
The child has its rights. .One is to be educated by the state, which provides instruction at certain hours of the day. The streets and avenues traversed by horse-railways are. thronged and crossed necessarily by many tens of thousands of children on their way to, or from places of instruction, profiting by this public provision and invitation extended to them. To have an adult custodian with any considerable number of them would be impossible. To keep them home would-conflict with the-best interests, and the1 established system of the state, and .be a denial of the rights of the child.
Judge Mason, in Mangam agt. Brooklyn R.R. Co., (38 N. Y., 461), defending the rights of children of tender years, says : “ They are not beyond the pale of the law when in the streets ; common humanity is alive to their protection, and the law both in reason and justice, and out of compassion to their weakness and inability to protect themselves, should throw a broader shield of protection around them, against injuries from the careless conduct of the strong, than it affords -to an adult, who is capable of self defense and -protection/’ *411Judge Grover, in the same case considers “that a somewhat different rule in determining the care to be exercised,, is to be applied to infants than is applicable to adults, when the inquiry is, whether their negligence has contributed to an injury received.” In the case of O’Mara agt. The Hudson R. R.R. Co., (38 N. Y., 449), the same views are sustained, and Chief Judge Hunt affirms1 that the young “ cannot be required to exercise as great foresight and vigilance as those of maturer years. This an 'engineer is bound to know, and if the child is in his view, to act accordingly.”
These observations apply with great force to the case under consideration. There is not shown in it that negligence on the part of the plaintiff, that sustains a departure from the general rule, that the question of the contributory negligence of the party‘injured, should be left with the jury. It may be regarded as now in accordance with the tiniform tenor of the recent English cases, and those in our courts, that the general question of negligence of the defendants, and .the contributory negligence of the plaintiff, are exclusively within the province of the juiy (Lunt agt. Railway Co., 1 Law Rep., Q. B., 277; Beebee agt. Railway Co., 18 Com. B. N. S., 584; Stupley agt. Railway Co., 1 Law Rep. Ex,, 21 ; Stubley agt. Railway Co., 1 Law Rep., 13; Hogan agt. Eighth Ave. R.R. Co., 15 N. Y., 383; Ernst agt. Hudson R. R.R. Co., 35 N. Y., 38; McGrath agt. Hudson R. R.R. Co., 32 Barb., 147 ; Malloy agt. N. Y. Central R.R. Co., 58 Barb., 184 ; Mulhado agt. Brooklyn City R.R. Co., 30 N. Y., 373 ; Brown agt. N. Y. Central R.R. Co., 34 N. Y., 404; Creed agt. Hartman, 29 N. Y., 592; Keller agt. Hartman, 24 How., 177 ; Mentz agt. Second Av. R.R. Co., 2 Robts., 357 ; and affirmed in court of appeals, Alb. Law Jour., Vol. 1, 99). In view of what may be considered the settled law'in respect to these questions, this case should have gone to the jury. • The judgment and order appealed from should be set aside, and a new trial ordered.
■ McCunn and Sedgwick, JJ., concurred.