came up at rapid speed as the child turned to cross the track, when she was struck by it and run over. Held, that plaintiff was entitled to go to the jury on the question of whether the driver exercised ordinary care, as his failure to do so rendered defendant liable, though there was negligence on the part of the child.1

Appeal from trial term.

This action was begun on the 25th day of June, 1879. The answer was served on the 4th day of August, 1879. It was tried before the court and a jury, February 9, 1881, and the complaint was dismissed. on motion of defendant's counsel. After the proofs on the part of the plaintiff were in, a judgment was entered in favor of defendant, from which plaintiff appeals. The action was brought to recover damages for the death of the plaintiff's intestate, Mary Ellen Mallard, who was killed on the 10th day of May, 1879, by being run over by a horse-car at the corner of Greenwich and Spring streets, in the city of New York.

Argued before LARREMORE, C. J., and DALY and BOOKSTAVER, JJ. George W. Wilson, for appellant. Robinson, Scribner & Bright, for respondent.

DALY, J. There was testimony on the part of the plaintiff to show that the deceased, a child between 9 and 10 years of age, was attempting to cross Greenwich street, at the intersection of Spring street, in the evening, between 8 and half-past 8 o'clock; that there was a crowd of persons on the crosswalk at the time, who stood back to let the approaching car pass; that the deceased stopped about 2 feet from the car track, with her back to the approaching car, then 50 feet away, and called to companions on the sidewalk to follow her; that there was no obstruction to prevent the driver seeing the child, and that he came up at a rapid pace,-one witness says a sharp gallop, one, a trot; and that his horse passed the child, who then turned and attempted to cross the track, and was struck by the front platform of the car, run over by the front wheel, and dragged a short distance by the hind wheel, before the car was stopped. This state of facts required the submission to the jury of the question whether the driver of the car exercised ordinary care, under the circumstances. The distance from the track (2 feet) at which. the child stood when the car approached may have been a safe distance, providing she remained where she was; and it may be urged that the driver was justified in proceeding without slackening his speed, in view of that circumstance. I think this would be so, if the child had been looking towards the car as it approached, or the driver had any reason to believe that she was aware of the danger of making an attempt to cross, and that she would probably refrain from doing so. But, as her back was towards him, he must have seen that there was some hazard that she might not be aware of the approach of the car, and might make some movement that would have put her in danger. He was not to expect the same prudence on her part that he might justly look for from an adult or older person. He was bound to know that she could exercise only the prudence natural to her tender years, and under these circumstances he was bound to exercise care proportioned to the danger to be avoided; and whether he did so or not was a question for the jury. It is urged, however, that the same proof in the plaintiff's case showed that the deceased child was guilty of negligence which contributed directly to the accident. She was bound to the exercise of some care, and of such care as might be reasonably expected from a child of her years. What an older person should have done in the way of looking before starting to cross the street is not the standard by which her actions are to be judged. It is true that she is de

'As to the liability of horse and street railway companies for injuries to persons in the street and to passengers, and as to what is negligence in such cases, see Valentine v. Railroad Co., 4 N. Y. Supp. 481; Farrell v. Railroad Co., Id. 597, and note; Railway Co. v. Robinson, (Ill.) 18 N. E. Rep. 772, and note.

scribed as having stopped near the middle of the street, 2 feet from the railroad track, with her back to the approaching car, then 50 feet away, calling to her companions on the sidewalk to follow her; and that just as the horses had reached her, or had passed her, she turned to run across the stret, without looking before her, and was struck by the front platform of the car, and run over by the front wheel. Had an adult done this, it is probable that he would not be permitted to recover damages for the injury that ensued, as his conduct might be deemed reckless in the extreme. It is possible that the deceased was negligent in so acting. If she were, and that negligence contributed to the accident, a nonsuit was proper. If we assume that she was sui juris, it implies that she had sufficient mental and physical capacity to be chargeable with the exercise of some degree of care and prudence, and responsible for the consequences of some degree of negligence. An infant is not in law altogether exempted from the exercise of care and prudence, and the defendant has a right to insist that she should not have been the heedless instrument of her own injury; and, whenever it affirmatively appears that the injury was occasioned by the fault of the party injured, there can be no recovery. Wendell v. Railroad Co., 91 N. Y 420; Reynolds v. Same, 58 N. Y. 248. But in this case the question arises whether the driver of the car, notwithstanding the negligence of the child, could not have prevented the accident by the exercise of ordinary care. If he could, then he was the sole cause of the injury, and the negligence of the child will not prevent a recovery. "The plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after becoming aware of the plaintiff's danger, failed to use ordinary care to avoid injuring him." Shear. & R. Neg. § 36. Contributory negligence on the part of the plaintiff will not disentitle him to recover damages, if the defendant might, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff. Add. Torts, (3d Ed.) 21. There may be mutual negligence, and yet one party have a right of action against the other. If a man negligently lie down and fall asleep in the middle of the public road, and another, failing to exercise ordinary care, should drive over him, the party injured would have a right of action against the other. Thomas v. Kenyon, 1 Daly, 142.

What degree of care was the driver bound to exercise with regard to this child, if he saw, or could have seen, her where she stood, as described by the witnesses? The authorities answer the question. It is said in Sheridan v. Railroad Co., 36 N. Y. 39, that a child is entitled to more attention and care from a railroad company than a person who is under no disability. It is entitled to more consideration when crossing a street, to the end that the cars shall not run over it; and such speed in driving as would be reasonable care towards others might well be carelessness and neglect towards a child. In O'Mara v. Railroad Co., 38 N. Y. 445, it was said: "The old, the lame, and the infirm are entitled to the use of the streets; and more care must be exercised towards them by engineers than towards those who have better powers of motion. The young are entitled to the same rights, and cannot be required to exercise as great foresight and vigilance, as those of maturer years. More care towards them is required than towards others. In the case of a child but two or three years of age, no knowledge or foresight could be expected. This an engineer is bound to know, and, if the child is within his view, to act accordingly. In a case like the present, that of a boy 11 years of age, the jury were not bound to require the same demureness and caution as in the case of an older person." In Thurber v. Railroad Co., 60 N. Y. 326, it was said: "If the driver of the car had been reasonably vigilant, or even exercised the very lowest degree of care, * * *he would have seen the plaintiff, and could by a very slight effort have entirely arrested, or checked, the progress of the car. and avoided the injury. * His omission to perform this slight duty was culpable negligence, for which the defendant must respond, unless it appears

*

*

from the whole case that the injury is not attributable to that cause." In Murphy v. Orr, 96 N. Y. 14, it was said. “Whoever drives horses along the street of a city is bound to anticipate that travelers on foot may be at the crossing, and must take reasonable care not to injure them. He is negligent whenever he fails to look out for them, or when he sees, and does not, so far as in his power, avoid, them. In this case the day was clear and bright. The street was unobstructed, the horses quietly moving on a walk, completely under the control of the driver, who, from his elevated seat, could see all around, in front, and on both sides of him. The plaintiff, a child between three and four years of age, while on the cross-walk, and passing over, was knocked down by one of the horses. The evidence is sufficient to show that, if the driver had looked, he would have seen the child in season to have avoided it. His conduct was sufficient to justify the conclusion of the jury that he failed in both particulars, because he was unobservant; and the learned trial judge committed no error in charging them to say whether, under all the circumstances surrounding the transaction, he was negligent in not discovering the child in time to prevent the injury.' And in Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. Rep. 415, it was said that the "driver was bound to be watchful at all points elsewhere, as well as at the cross-walk; and, had he been so, the jury might well have said from the evidence he would have seen the child in season to have prevented the collision." These rules, by which we are to judge the conduct of drivers of vehicles approaching children who are in the street, exposed to the consequences of their own natural want of foresight, as well as to want of care on the part of others, require that in a case like the one before us the questions of contributory negligence on the part of the infant, and of the want of ordinary care on the part of the driver, should be submitted to the jury. The case is distinguishable from McKenna v. Railroad Co., 9 Daly, 262, where it was held not to be negligence in the engineer of a locomotive to proceed when he perceived a person lying motionless by the side of the track, in such a position that if he had made no incautions movement he would have escaped injury. In this case the child was not lying motionless, and it was for the jury to say whether it was apparent that she might change her position at any moment, so as to bring her into danger. There is also to be considered the fact that the speed of a horse-car may be more easily controlled than that of a locomotive. The judgment should be reversed, and a new trial ordered; costs to abide event. All concur.

WALSH . BOWERY SAV. BANK.1

(Common Pleas of New York City and County, General Term. December 2, 1889.) 1. GIFTS-PLEADING AND PROOF-AMENDMENT.

Proof of a gift causa mortis is admissible under a complaint alleging a gift inter vivos, and the amendment of the complaint to conform to proof of a gift causa mortis does not prejudice defendant.

2. SAME-DONATIO CAUSA MORTIS-EVIDENCE.

A good gift causa mortis is shown where it is proved that money on deposit in bank was given to plaintiff, and that the bank-book to enable her to get the money was actually delivered to her by the donor, who at the time was in expectation of impending death, and who did die a day or two afterwards.2

3. SAME-RIGHT OF DONEE TO SUE.

Where there is a gift causa mortis of money on deposit in a bank and a delivery to the donee of the bank book, and the bank pays the money to the donor's administrator after receiving notice of the donee's claim, the donee is not compelled to look to the administrator, but may recover from the bank.

Appeal from city court, general term.

'Affirming ante, 97.

Concerning what constitutes a valid gift causa mortis see Van Fleet v. McCarn, 2 N. Y. Supp. 675, and note; Fearing v. Jones, (Mass.) 20 N. E. Rep. 199; Drew v. Hagerty, (Me.) 17 Atl. Rep. 63, and note; Sanborn v. Sanborn, (N. H.) 18 Atl. Rep. 233.

Action by Mary Walsh against the Bowery Savings Bank, to recover money deposited with defendant by one Mary Duffy, (since deceased,) and given by her before her death to plaintiff. The complaint was as follows: "The plaintiff, by W. H. Regan, her attorney, complaining of the above-named defendant, alleges: (1) On information and belief, that at all times hereinafter named the defendant was and is now a corporation, duly organized and existing under and by virtue of the laws of the state of New York, and having its principal place of business in the city of New York. (2) On information and belief, that on or about the 20th day of September, 1882, at the city of New York, Mary Duffy (now deceased) deposited with defendant, in her own name and for her own account, the sum of one hundred and eleven dollars, which was of her separate estate, she being a married woman, and received from said defendant thereupon its bank or pass book numbered 546,069, said defendant agreeing thereupon to pay on demand said sum, and such interest as its profits would allow; that no part of said sum or interest has ever been paid by said defendant, except the sum of five dollars. (3) That on or about the 9th day of February, 1883, said Mary Duffy gave and transferred said sum, and the interest due thereon, and all her right and interest therein, to this plaintiff, accompanying said gift and transfer by the delivery to this plaintiff of the said pass-book. (4) That on or about the 15th day of February, 1883, the plaintiff duly demanded said sum of the defendant, but said defendant then and has ever since refused, and still refuses, to pay said sum, or any part thereof, and the whole thereof is now due, with interest from February 15, 1883. Wherefore plaintiff demands judgment against the defendant for the sum of one hundred and six dollars, and interest thereon from February 15, 1883, besides the costs and disbursements of this action." On motion of plaintiff, the complaint was amended to conform to proof of a gift causa mortis. There was judgment for plaintiff. Defendant appeals. For motion to amend complaint, see ante, 97.

Argued before LARREMORE, C. J., and DALY and VAN HOESEN, JJ. Norwood & Coggeshall, for appellant. William H. Regan, for respondent.

VAN HOESEN, J. Under the complaint, as it was originally drawn, it was proper to admit proof that the plaintiff acquired title by a donatio causa mortis. An amendment was not at all necessary, though the counsel for the defendant succeeded in frightening the plaintiff's attorney into making a motion for leave to amend. Such leave was granted, but the defendant was not thereby prejudiced.

A good donatio causa mortis was proved. The money on deposit was given the plaintiff, and the bank-book was actually delivered to her by the donor to enable her to get the money. The donor was in expectation of impending death, and she died in a day or two afterwards of the disease whose tatal issue she anticipated. A good donatio causa mortis may be made by the delivery of the donor's bank-book to the donee, where the circumstances exist that must surround a gift of that description. 8 Amer. & Eng. Cyclop. Law, 1345, 1346 et seq.

As to the validity of the gift in this case there cannot be a doubt; but a question is made as to the right of the plaintiff to recover the money from the bank. The money was actually drawn from the bank by the administrator of the donor, and, as the gift was valid, the plaintiff might recover judgment against the administrator in an action for money had and received to her use. Whether such a judgment would be of any value in this case, we have no means of knowing. In Massachusetts, it was decided in the case of Pierce v. Bank, 129 Mass. 425, that, even without the consent of the administrator, the donee might maintain an action for the money in the administrator's name. Such an action could not be maintained in this case, because the administrator has already collected the money from the bank. The difficulty in

which the bank now finds itself is entirely of its own creation; for, after having been notified that the plaintiff claimed the money as hers by gift, it nevertheless, either carelessly or willfully, disregarded the notice, and paid the money to the administrator. The payment to the administrator, after notice of the plaintiff's rights, leaves the bank in no position to call on the plaintiff to look to the administrator for the money. By thus paying the administrator the bank stepped into his shoes, and cannot defeat the plaintiff's claim unless the administrator could successfully resist it. The case was rightly decided, and judgment should be affirmed, with costs.

ILSLAY et al. v. SMEDES.

(City Court of New York, General Term. October 31, 1889.) NEGOTIABLE INSTRUMENTS-BONA FIDE HOLDERS-COLLATERAL SECURITY.

The bona fide holder for value of a negotiable note, without notice and before maturity, is not bound to inquire whether there is collateral security accompanying it, where it contains no reference to security; and, in a suit by the holder to collect it, evidence of collateral deposited with plaintiff's assignor to secure its payment is inadmissible.

Appeal from trial term.

Action by William C. Ilslay, Chester P. Doubleday, and Edwin S. Doubleday, constituting the firm of Ilslay, Doubleday & Co., against Thomas S. Smedes, on a promissory note payable to B. F. Watkins and assigned to plaintiffs. The defense was conversion of collateral security, the evidence of which was excluded by the court, and a verdict directed for plaintiffs, and from judgment entered thereon defendant appeals.

Argued before MCADAM, C. J., and HOLME, J.

Andrews & Purdy, for appellant. Reynolds & Harrison, for respondents.

PER CURIAM. The plaintiffs became bona fide holders of the note in suit for value, and without notice, before maturity. This is the legal presumption, and it was not negatived. The note is in the ordinary form, makes no reference to collateral, and the plaintiffs were not bound to inquire or ascertain whether there was collateral accompanying it or not. The note is not printed, but there is nothing in the case to show that it differs in any way from an ordinary promise to pay. The defendant offered nothing which changed the burden of proof, or in any way altered the legal presumption. The record offered in evidence was ruled out; it was between different parties, and was apparently inadmissible. The record is not before the court, is not printed in the case, and we are unable to determine that any error was committed. The colloquy between the court and counsel, after the verdict was directed, does not make the direction erroneous. It follows, therefore, that the judgment appealed from must be affirmed, with costs.

In re APPROVAL OF MEDICAL CERTIFICATES OF INSANITY. (City Court of New York, General Term. December 12, 1889.) INSANITY-APPROVAL OF MEDICAL CERTIFICATES-CONSTRUCTION OF Statute. Acts N. Y. 1874, c. 446, provides that no person can be confined as a patient in an asylum for the insane except upon the certificate of two duly-qualified physicians, setting forth the insanity of such person; and the confinement cannot exceed five days, unless within that time the certificate shall be approved by a judge of a court of record of the county in which the lunatic resides. Held, that the physicians may unite in one certificate, or each may make one, which need not be sworn to on the same day, or before the same judge, it being a compliance with the statute if the certificates are approved of within five days.

Case submitted upon agreed statement.