Fenton v. Second-Ave. R. Co.

• Decision Date: 10 March 1891
• Citation: 126 N.Y. 625,26 N.E. 967
• Parties: FENTON v. SECOND-AVE. R. CO.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 625

26 N.E. 967

FENTON

v.SECOND-AVE. R. CO.

Court of Appeals of New York.

March 10, 1891.

Appeal from supreme court, general term, first department.

Aug. S. Hutchins and Waldo Hutchins, for appellant.

Wm. M. & Jas. M. Lyddy, for respondent.

EARL, J.

This action was brought by the plaintiff to recover damages for the death of his son, the intestate, alleged to have been caused by the carelessness of the defendant on the 7th day of April, 1888. The material facts are as follows: The defendant operated its horse railroad through Second avenue, in the city of New York. Between 11 and 12 o'clock on the day named one of the defendant's cars was coming up the avenue, and, while it was crossing East Twenty-Fifth street, the intestate started from the north-west corner of the street, apparently to run diagonally across to the south-east corner, and when he reached the westerly rail of the track upon which the car was running he stumbled and fell on the track in front of the horses, and a portion of the car passed over him, and he was so injured that he died. He was an intelligent, strong, healthy lad, nearly 10 years old, and perfectly familiar with the locality, the railroad, and its operation. There was nothing to obstruct his view of the approaching car, which was moving at the usual rate of speed, the horses attached thereto trotting, and the only carelessness alleged against the defendant is that the driver did not stop the car in time to save the life of the intestate. Two witnesses were called as to the accident on the part of the plaintiff. The first, Bedles, who at the time was standing near the north-east corner of the street, testified that he saw the car coming, and, perceiving the danger to the boy, hallooed to the car; that he saw the boy, while running, stumble and fall from 10 to 15 feet in front of the horses, and that he hallooed at the time the boy fell; that there were two drivers on the front platform of the car; that they were looking up street, and did not apply the brake until the car struck the boy. The other witness, Barron, was at the south-west corner, and testified that he saw the boy look up and down the avenue, and start on a run to cross it; that he saw him stumble and fall at the west rail of the track; that he attempted to get up, and before he could do so was struck by the horses, which were about 20 feet away from him when he fell; that he heard the hallooing by Bedles, and that the brake was not applied until the horses struck the...