Fleming . Brooklyn City R. R. Co.

passer, see the following cases: Shearm. & Redf. on Neg. § 262; Gordon v. Grand St. & Newtown R. R. Co., 40 Barb. 546; Edgerton v. New York & H. R. R. Co., 39 N. Y. 227. The question is exclusively for the jury (Meyer v. Second Ave. R. R. Co., 8 Bosw. 305; Wharton on Neg. § 354).

III. The deceased was lawfully on defendant's cars, (Carroll v. N. Y. & N. H. R. R. Co., 1 Duer, 571; see also 34 N. Y. 670; Wilton v. Middlesex R. R., 107 Mass. 108).

IV. Although deceased was not a passenger for hire, the defendant would still be liable (Nolton v. Western R. R. Co., 15 N. Y. 444; Gould v. Hill, 2 Hill, 623; Cole v. Goodwin, 19 Wend. 251; Perkins v. N. Y. C. R. R. Co., 24 N. Y. 200; Phila., &c. R. R. Co. v. Derby, 14 How. [U. S.] 468; 6 Id. 382; Doran v. E. R. F. Co., 3 Lans. 105).

V. Even if a trespasser, defendant owed him the duty of careful treatment, and careful regard for his life and limb (Shearm. & Redf. on Neg. § 264; Robertson v. Erie R. R. Co., 22 Barb. 91; Robinson v. Cone, 22 Verm. 213; Birge v. Gardiner, 19 Conn. 507; R. R. Co. v. Stout, 17 Wall. 657; Corwin v. N. Y. & E. R. R., 13 N. Y. 42; Whart. on Neg. §§ 346, 354; Lynch v. Nurdin, 1 Ad. & E. [N. S.] 29, and 1 Q. B. 36).

VI. The chief ground of defendant's liability, consists in the extreme infancy of deceased, and this is a question for the jury (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310; Downs v. N. Y. C. R. R. Co., 47 Id. 83; Drew v. Sixth Ave. R. R. Co., 26 Id. 49; Ihl v. Forty-second St., &c. R. R. Co., 47 Id. 317; Sheridan v. Brooklyn City, &c. R. R. Co., 36 Id. 39; O'Mara v. H. R. R. Co., 38 Id. 445; Mangam v. Brooklyn City R. R. Co., 38 Id. 455; Nichols v. Sixth Ave. R. R. Co., 38 Id. 131).

VII. As to negligence of company, and its duty as common carrier to so young a child, see Spooner v,

Fleming v. Brooklyn City R. R. Co.

Brooklyn City R. R., 36 Barb. 217; Mulhado . Brooklyn City R. R., 30 N. Y. 370; Ernst v. Hudson R. R. R., 35 Id. 9; Smith v. N. Y. & H. R. R. Co., 19 Id. 127; Nolton v. Western R. R. Co., 15 Id. 444; Stinson v. N. Y. C. R. R. Co., 32 Id. 333; Coughtry v. Globe, &c. Co., 56 Id. 124; Eckert v. L. I. R. R. Co., 43 Id. 505.

VIII. Absence of contributory negligence need not be alleged in the complaint (Johnson v. H. R. R. Co., 5 Duer, 21; 2 N. Y. 65; Wolfe v. Supervisors of Richmond, 11 Abb. Pr. 270).

Henry C. Murphy, for respondent.-I. There should be an allegation in the complaint that deceased was free from contributory negligence, which must be alleged and proved to constitute a cause of action (Button v. H. R. R. Co., 18 N. Y. 248; McLain v. Van Zandt, 39 Super. Ct. [J. & S.] 347; Warner v. N. Y. C. R. R. Co., 44 N. Y. 465; 1 Abbott's Forms, No. 194, 196, 2nd ed. p. 453; Spencer v. Utica & S. R. R. Co., 5 Barb. 337.

II. Driver a special agent for particular purpose, which purpose does not embrace authority to admit or exclude passengers, and cannot increase his powers by his own act (Marvin v. Wilber, 52 N. Y. 270; Eaton v. Del., &c. R. R. Co., 57 Id. 390).

III. The driver, in inviting boy on to the car, was not acting in the scope of his agency, and his act was not defendant's (Isaacs v. Third Ave. R. R. Co., 47 N. Y. 125; Eaton v. Del., &c. R. R. Co., 57 Id. 382, 389; Mechanics' B'k v. N. Y. & N. H. R. R. Co., 13 Id. 634; Sleath v. Wilson, 9 Car. & P. 607; McKenzie . McLeod, 10 Bing. 385; Shearm. & Redf. on Neg. § 63).

IV. Deceased being on car as trespasser, defendant owed him no legal duty on which negligence can be based (Eaton v. Delaware, &c. R. R. Co., supra;

Fleming v. Brooklyn City R. R. Co.

Nicholson v. Erie R. R. Co., 41 N. Y. 530; Terry v. N. Y. C. R. R. Co., 22 Barb. 586; Bolch v. Smith, 7 Hurls. & N. 736; Gillis v. Penn. R. R. Co., 59 Penn. 129; cited in 16 Am. R. 619).

He

REYNOLDS, J.-The plaintiff's intestate was not a passenger on the defendant's car. He was not expected to pay fare, neither did he go on board for the purpose of being transported from one place to another. simply had a license to pass on and off the car, for the purpose of selling papers to the passengers. It appears from the complaint, that he passed into the car safely; the charge is, that the driver permitted him to pass out and off, by way of the front platform, without stopping, or slackening the speed of the car, and without directing him to pass out by way of the rear platform.

The complaint proceeds upon the theory, that by permitting newsboys to traffic with the passengers on the cars, the defendant becomes charged with the duty of looking after their safety, of seeing that they do not run into danger, and of stopping or slackening the speed of the car for them to leave, whether requested to do so or not.

I do not think the railroad company can fairly be said to have assumed any such obligation. Of course the driver had no right to do any thing which would recklessly, or needlessly expose this boy to danger; but I do not understand that the company is in any sense the guardian for the time being, even of children of tender years, who are permitted by their parents or guardians to go upon the cars for the purpose of selling papers, nor that it is bound to restrain them from exposing themselves to danger. It employs agents for the purpose of carefully and properly conducting the business of carrying passengers, but such business, it seems to me, does not embrace within its scope the

Stamm v. Southern R. R. Co. of Long Island.

obligations sought to be charged upon it by the complaint in this action.

I think the complaint was properly dismissed, and that the judgment should be affirmed.

NEILSON, Ch. J., concurred.

STAMM v. SOUTHERN R. R. CO. OF LONG ISLAND.

City Court of Brooklyn; General Term, March, 1876.

NEGLIGENCE.

It is prima facie negligent for an engineer of a dummy railroad engine to discharge a sudden jet of steam upon a passing team. Whether one driving a horse, accustomed to meet a dummy engine, along the lawful side of a public highway between the railroad track and the curb on meeting such an engine, is guilty of contributory negligence, is a question for the jury.

Appeal by plaintiff from a judgment of nonsuit, on the ground that he had not shown the negligence of the defendant, and was guilty of contributory negli gence.

Richard Stamm, the plaintiff, was driving a horse and truck along Broadway, in the city of Brooklyn, on the right hand side of defendant's track, the space between the track and the curb being thirteen feet. A dummy engine, drawing several cars, was passing up Broadway, and, according to plaintiff's testimony, just as the dummy was alongside of the horse, the bell rang, and the engine let off steam. He says "the steam came from the dummy, from the side, squirted right out." As the steam escaped, the horse suddenly jumped back, bringing the wagon into collision with

Stamm v. Southern R. R. Co. of Long Island.

one of the cars, by which the plaintiff was thrown out and seriously injured. The plaintiff, on the trial below, was nonsuited on the ground that he had not shown negligence upon the part of defendant.

Dailey & Perry, for appellant.-I. Unless the evidence is clear and undisputed, and so entirely fails to make out a cause of action that different minds may not come to opposite conclusions, the court should not nonsuit the plaintiff (Borst v. Lake Shore & Mich. S. R. R. Co., 4 Hun, 346; Gonzales v. N. Y. & H. R. R. Co., 39 How. Pr. 407; Wooden v. Austin, 51 Barb. 9; Ernst v. H. R. R. Co., 35 N. Y. 10; Bridges v. The N. Lond. Rw. Co., 30 L. T. N. S. 844; 10 Alb. L. J. 464).

II. The plaintiff was not guilty of contributory negligence, and the accident having happened by the negligence of the defendant, he is responsible for the damages (Eckert v. L. I. R. R. Co., 57 Barb. 555; Fero v. Buffalo & State Line R. R. Co., 22 N. Y. 209; Eldridge v. L. I. R. R. Co., 1 Sandf. 89; Buel v. N. Y. C. R. R. Co., 31 N. Y. 314).

III. Plaintiff had a right to suppose the dummy would be managed as on former occasions, and defendant had no right to let off a jet of steam while passing along a public street, so as to endanger life (Borst v. Lake Shore & Mich. S. R. R. Co., supra; Lenton v. Gunther, 4 Hun, 141; Beisigel v. N. Y. C. R. R. Co., 34 N. Y. 623).

IV. The court should have compelled the defendant to disclose any palliating circumstances, if there were any, and submit the whole evidence to the jury (Ernst v. H. R. R. Co., supra; Penn. R. R. Co. v. Kilgore, 32 Penn. R. 292; Keller v. N. Y. C. R. R. Co., 2 Abb. Ct. App. Dec. 480; Johnston v. Hudson R. R. Co., 20 N. Y. 66).

Hinsdale & Sprague, for respondent.-I. The ring