in which the copartners might engage, although with copartnership funds, and however remote from their natural business, should be made the basis of swelling or reducing plaintiff's commissions. We assume that, if defendants had made profits in any one year in the purchase and sale of cheese upon which plaintiff was entitled to commissions, and such profits were entirely wiped out by some outside venture like the erection of this building, or the purchase of land, or any other form of speculation, plaintiff very strenuously would have insisted that he should not be affected by such losses. The reverse of the illustration seems to us proper. We do not think that the erection of the building was a part of the copartnership business which plaintiff was hired to work in, and that he is, therefore, not entitled to compensation by way of commissions upon any apparent profit in the building.

We have not overlooked the fact that the case upon appeal does not, in precise words, state that it contains all the evidence. The parties, however, have made what they evidently regarded as a compliance with the rule upon this subject, and no question has been raised by either of them upon this point. Under such circumstances we have deemed it proper to be governed by the manifest intention of the parties. In accordance with these views, we think the judgment appealed from should be reversed, with costs to the appellant. to abide event.

Judgment and order reversed, and new trial granted, with costs. to the appellant to abide event upon questions of law only, the facts having been examined, and no error found therein. All concur, except SPRING, J., not voting.

WELLS et al. v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, Fourth Department. December 9, 1902.) 1. RAILROADS-PERSONS ON TRACK-DEATH-CONTRIBUTORY NELIGENCE.

In an action against a railroad company for its negligence in making a "running switch" over a highway, resulting in the killing of plaintiffs' daughter, who was eight years of age, and declared to be sui juris, evidence examined, and held to show that the child was not guilty of contributory negligence.

& DEATH-DAMAGES-EXCESSIVE VERDICT.

A verdict for $3,500 in an action by parents for causing the death of a bright, healthy girl 81⁄2 years of age, who lived with her mother apart from the father and husband, was excessive, and should be reduced to $2,500.

Appeal from trial term, Onondaga county.

Action by Frederick and Julia Wells, as administrators, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. Affirmed conditionally.

This action was commenced on the 23d day of November, 1901, by the plaintiffs, as administrators, to recover damages for the alleged negligent 12. See Death, vol. 15, Cent. Dig. § 128.

and 112 New York State Reporter

killing of their daughter, Catharine Wells, an infant 81⁄2 years of age on the 16th day of the same month. The accident which resulted in the death of the child occurred at a point on Harbor street, in the city of Syracuse, where the highway is crossed by a branch track of the defendant's railroad. At about 11 o'clock on the morning in question the deceased was walking in a southerly direction upon the sidewalk of Emerson street. When she reached a point where that street intersects Harbor street, she stopped a moment. and proceeded on her way towards her home, which, it seems, was in that vicinity. Reaching a point about 10 or 15 feet from the defendant's track she was seen to look both ways, and then she stepped upon the tracks, and as she put one foot upon the second rail she was struck by one of two cars which had been "kicked" down the branch track by a locomotive, and thrown under its wheels. In this situation she was dragged for some distance, and almost instantly killed. Upon the trial the jury rendered a verdict in favor of the plaintiffs for $3,500, and from the judgment entered thereon, and also from an order denying the defendant's motion for a new trial, this appeal is brought.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.

Frank Hiscock, for appellant.

John N. Mosher and Theodore Hancock, for respondents.

ADAMS, P. J. From the foregoing brief recital of the main facts of this case it will be seen that the defendant at the time of the accident was engaged in making what is called a "running switch" over a highway in a large and populous city, and the uncontradicted evidence tends to prove that this was being done under circumstances which were peculiarly flagrant, for these two cars were heavily laden with steel rails, and were sent over the highway crossing at a high rate of speed, with no one upon either of them to control their movement. In these circumstances it is hardly necessary to cite any authorities to establish the defendant's negligence, and, indeed, that fact was not controverted upon the trial, but, upon the contrary, was then, as it is now, expressly admitted. It is claimed, however, and these are the only questions raised upon this appeal,-that the deceased was guilty of contributory negligence, and that the damages awarded by the jury were excessive. The undisputed evidence tends to show that under ordinary circumstances these cars might have been seen as they approached the crossing in question, and that the track itself was in plain sight for a distance of at least 576 feet from any point 30 feet north thereof. It also appears that the deceased was familiar with her surroundings, that she had frequently crossed the defendant's track at this point, and that she was so bright and intelligent as to elicit from the trial court the direction that, notwithstanding her youth, she was sui juris. With these facts fully established, it is now insisted by the learned counsel for the defendant that the contributory negligence of the deceased was so clearly estab lished as to require the court to dispose of that question as one of law. The degree of care required by infants who are declared to be sui juris is something which cannot be determined by any rule which is applicable to all cases, but it is generally dependent upon the cir cumstances of each particular case. It may be assumed, however, that, while a person of tender years and immature judgment is not

required to exercise the same degree of care and judgment for his own preservation in the face of impending danger as an older one, he is nevertheless bound to make some use of his faculties; and the rule which is generally applied to these cases is that the degree of care required of an infant shall be such as might be reasonably expected of a person of its age under all the circumstances of a given case, which almost of necessity makes this question one of fact. It was thus treated in the present case by the learned justice who presided at the trial, and, we think, properly so, for it is not to be denied that the conditions by which the plaintiffs' daughter was surrounded at the time of the accident were quite unusual in their nature, and such as might well have produced confusion in the mind. of a person of even more mature judgment. In the first place, there is evidence in the case tending to prove that there were piles of railroad ties at intervals by the side of the defendant's track which, to some extent at least, obstructed the view of the approaching cars; but, assuming that there was no such obstruction, or that it did not materially interrupt the line of vision, and that the defendant's track was in plain sight for a distance of 500 or 600 feet from the crossing, it appears that these two cars were approaching the crossing quietly, with no person upon them; that the locomotive which had shoved them onto the branch was on the main track, moving in an opposite direction, and emitting more or less smoke, which, as the witnesses say was "up in the air right between the engine and Harbor street.” In these circumstances it is not strange that the child did not perceive the moving cars, or appreciate the danger confronting her, when she stepped upon the track. Indeed, the witness Howard Davis, who was just behind her, and only about 10 feet from the track, testified that when he first saw these cars "they were almost on top of her." There are numerous cases in the reports of this state wherein it has been held that circumstances of much less weight than those to which we have called attention presented a question of fact for the jury, of which it is necessary to cite only two or three of the more prominent ones. Zwack v. Railroad Co., 160 N. Y. 362, 54 N. E. 785; Barry v. Railroad Co., 92 N. Y. 289, 44 Am. Rep. 377; Byrne v. Same, 83 N. Y. 620. As has been said, the learned trial justice followed the doctrine of these cases in his instructions to the jury, and we do not see how he could have done otherwise without violating a pretty well-settled rule of law.

The question of damages was likewise one with which the jury was especially qualified to deal, and their conclusion, unless clearly the result of prejudice, passion, or partiality, ought not to be interfered with. Like the degree of care required of an infant, the pecuniary value of its life is a matter not easily determined, and must depend upon the circumstances. In one case it was held that a verdict of $7,500 for the negligent killing of a boy 16 years of age was not excessive (Morris v. Railway Co., 63 App. Div. 78, 71 N. Y. Supp. 321); and the same amount was deemed proper in the case of a boy 12 years of age (McDonald v. Railway Co., 36 Misc. Rep. 703, 74 N. Y. Supp. 367). In Heinz v. Railroad Co., 91 Hun, 640, 36 N. Y. Supp. 675, the court refused to set aside, as excessive, a verdict of $3,500 which was recovered

78 N.Y.S.-63

and 112 New York State Reporter

for the death of a boy 7 years of age; and in Werner v. Railroad Co., II App. Div. 86, 42 N. Y. Supp. 846, where a father recovered a verdict of $3,750 for the death of a daughter 14 years old, it was said that it was not so large as to justify any interference by the court upon the ground of its being excessive. Many more cases to the same effect might be cited, while still others, which tend to support the defendant's contention, are not wanting; and this apparent contrariety of opinion simply proves that each case is, within the general rule heretofore adverted to, dependent upon its own circumstances. In the case under review it seems that the marital relations existing between the plaintiffs were somewhat strained, and that by reason thereof the husband did not live with his family at all times, and it is intimated that his conduct towards his wife was not such as to commend itself to our approval; but it also appears that he was especially fond of his little daughter, and she of him; that he provided for her, and that, even when living apart from his family, she frequently visited him, and carried his dinner to him; that she was an unusually bright, healthy, honest, and intelligent child, and gave much promise of future usefulness. In these circumstances I do not feel that we ought to interfere with the verdict, even if we regard it as somewhat larger in amount than we would have rendered under the same circumstances; but, inasmuch as a majority of my associates are of a different opinion, and think the verdict excessive, it must be reduced.

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide the event, unless the plaintiffs elect to reduce the recovery to the sum of $2,500 as of the date of the rendition of the verdict, in which event the judgment and order, as thus modified, are affirmed, without costs of this appeal to either party.

MCLENNAN, J., concurs. SPRING, WILLIAMS, and HIS COCK, JJ., concur, but vote to reduce the recovery to the sum of $2,500.

ECKERT V. TOWN OF SHAWANGUNK.

(Supreme Court, Appellate Division, Third Department. December 9, 1902) 1. HIGHWAYS-DEFECTIVE BARRIERS-DEATH OF CHILD-DUTY OF TOWNNEGLIGENCE.

The body of intestate, a boy of eight, was found in a mill pond; and near the place a highway ran along the edge of the pond, which de scended precipitously to the water. At the edge of the bank, defendant had erected a barrier, which had become rotten, and, near the point where the body was found, was broken down. The boy had been in the habit of fishing in the pond, and was venturesome, but on the day when he left home he stated that he was going to pick strawberries; and there was no proof as to how the barrier was broken, or how he fell into the pond. Held, that the evidence was insufficient to establish that he fell in while walking along the highway, by reason of the insuficiency of the barrier, and hence the town was not liable.

Appeal from trial term.

Action by Norman Eckert, as administrator of the estate of Charles Eckert, deceased, against the town of Shawangunk. From a judg

ment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Reversed.

Argued before PARKER, P. J., and KELLOGG, SMITH, and CHASE, JJ.

Everett Fowler, for appellant.

A. S. Embler, for respondent.

KELLOGG, J. The complaint charges that the defendant's commissioner of highways was negligent in not maintaining in proper repair a barrier on a public highway bordering on a dangerous embankment, and in suffering the barrier to become rotten and unsafe. It alleges that plaintiff's intestate, a boy eight years old, "while walking along said highway at the point or place where it passes over said dam or embankment, without fault or negligence on his part, but solely owing to defendant's negligence as aforesaid, was precipitated and fell into said pond * *by the breaking and giving away of the said barrier, and was drowned."

*

The facts as developed on the trial were briefly these:

The highway was about 18 feet wide, when for some distance it ran along an embankment, on one side of which was a mill pond. From the edge of the road the land sloped to the water at an angle of about 45°, and was covered with brush and weeds. The distance down this slope from the edge of the highway to the water at the time of the accident was about 7 feet. With care, a person could walk down and up the slope with reasonable safety. On the edge of the embankment, between the highway and the pond, was a barrier or a single rail about 21⁄2 feet above the ground. The rail was 4 inches square, set upon posts about 8 feet apart. The highway at this place had been maintained in this condition for 40 years or more, and no accident had ever happened. At the time of the accident the railing and posts were old and decayed, and retained little resisting power. The commissioner knew, or ought to have known, their condition. The plaintiff's intestate was his son, a boy 81⁄2 years old at the time of the accident, intelligent, and familiar with this road and the pond; living near the pond, some 600 feet away from the place where the accident occurred; was accustomed to go alone to fish in the pond from its banks. His father says:

"He acted like a little man,-like an older man. He would be fishing at times; would go out fishing by himself; got his rod and line."

He seems, also, to have been venturesome. A witness says:

*

*

"I know where there is a bulkhead there extending out on the north side of the pond on this bank. I have seen the boy on that bulkhead. The bulkhead extends out in the pond, as near as I can tell, about twelve feet, and, I should judge, was about three feet wide. I spoke to the boy and told him to get off of it. I told him to get off the bulkhead and to go home.

*

* I think this was the year before June, 1901."

In June, 1901, at 6 o'clock in the afternoon, the boy started to go along this road, telling his mother that he was going to pick strawberries. This was the last seen of him. Within 15 or 20 minutes after leaving home a neighbor called and said that the boy's hat was floating in the pond a few feet from this embankment; and