BANKS AND BANKING Two BANKS. Where a bank delivers a draft to another bank to pay a creditor, the relation between the two banks is simply that of principal and agent until the creditor assents to the transaction and acts in accordance therewith: Brockmeyer v. Washington National Bank, 40 Kan. 376.

CONNOLLY v. KnickerbocKER ICE COMPANY.

[114 NEW YORK, 104.]

QUESTION OF PLAINTIFF'S CONTRIBUTORY NEGLIGENCE IS FOR CONSIDERation of Jury, where he, an infant seven years of age, was, at the time of the accident, standing, by the invitation of the conductor, on the platform of a street-car, with which the defendant's wagon, which was being driven at a rapid rate, came into collision, causing the injury complained of, and the evidence shows that plaintiff did not see the wagon before the collision, and did not look to see if any wagon was coming. FACT THAT PASSENGER ON STREET-CAR STANDS ON OUTER PLATFORM when there is opportunity to take a seat in the car may, in an action against the railroad company to recover damages as for its negligence, under ordinary circumstances, constitute a defense; but it is not so in an action against another party to recover damages for negligence causing injury to the passenger, because the defendant in such case cannot assert as a defense the mere duty of the passenger in his relation as such to the rail. road company.

MINOR CHILD'S BEING UPON PLATFORM OF STREET-CAR IN VIOLATION OF CITY ORDINANCE, while it may be proved as a fact for the consideration of the jury, does not for all purposes necessarily establish negligence on his part.

ACTION to recover damages for personal injuries. The opinion states the case.

Alfred E. Mudge, for the appellant.

A. J. Skinner, for the respondent.

BRADLEY, J. This action was brought to recover damages resulting from personal injuries suffered by the plaintiff, alleged to have been occasioned by the negligence of the defendant. The injury was caused by a collision on Court Street, in the city of Brooklyn, between a street-car and the ice-wagon of the defendant. The wagon was going one way and the car the other, and as the car was turning from that street into another street, a wheel of the wagon came in collision with the rear end of the car, and the plaintiff was thrown from the side platform near that end of the car on which he was standing. The question of negligence of the defendant was, perhaps, a close one, but the evidence seems to have been such as to permit that imputation, and required the submis

sion of such question to the jury as one of fact. Both the wagon and the car were properly in the street, and the duty was with the driver of each to use reasonable care against injury to others. In this instance they approached each other at or near the junction of Court and Nelson streets, and the car was on the curve, proceeding to turn into the latter street, when it was struck by the wagon.

The main evidence of negligence of the defendant was that relating to the speed it was being driven. There is evidence tending to prove that it was going rapidly, and continued to do so until the collision occurred. It is, however, said, with the support of evidence tending to prove the fact, that if the car had continued in Court Street there would have been no collision; that the driver was not aware of the purpose to turn into the other street until both reached Nelson Street, and that then it was too late for the driver of the wagon to avoid the collision caused by the swinging of the rear end of the car into the line of the wheels on one side of the wagon in making the turn, and that the driver did what he then could to get the wagon out of the way of the car. Upon evidence given on the part of the defendant, if taken by the jury as a full and correct representation of the situation, they could not properly have charged the defendant with liability. But the jury were permitted, upon evidence given upon the trial, to find that when the movement was first made to turn the car, the defendant's driver, influenced by reasonable care, and in view of the situation, and exercising it, may and should have slackened the speed of the wagon, and by doing so the collision and the consequences resulting from it would have been avoided. And that, while the driver did not know or suppose until the car reached the intersecting street that it would be turned into it, the switch there would, if observed, have shown the opportunity to do so. The evidence on the part of the plaintiff, and the inferences fairly derivable from it, permitted the conclusion that the collision was caused by the negligence of the defendant's servant who was driving the wagon. The further question is, whether it appeared that the plaintiff exercised the care required of him. The burden was with him to make it so appear by evidence. He was then of the age of seven years, and was chargeable with the duty of exercising such degree of care as could reasonably be expected of one of his age, which, in view of all the circumstances, was properly for the consideration of the jury upon the question of contributory

negligence: Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289; 44 Am. Rep. 377; Byrne v. N. Y. C. & H. R. R. R. Co., 83 N. Y. 620; Thurber v. H. B. M. & F. R. R. Co., 60 Id. 326.

There was some conflict of evidence in relation to the circumstances under which the plaintiff got onto the car, but the finding was permitted by it, that the plaintiff, as he had done on one or more occasions before, appeared at the switch, turned it to enable the car to go from Court into Nelson Street; that he did so by the request of the conductor, who told him to do it and get on the car; that the plaintiff did so with a view to obtaining from the conductor a penny, and that while he stood on the platform waiting for it, the collision occurred which caused the injury. The plaintiff says he did not see the wagon, nor did he look to see if any wagon was coming. The car was then turning on its way into Nelson Street. He took no observation to see whether there was any danger to come from collision of the car with anything passing on the street. As matter of law, it cannot be said that he was required to apprehend that there might be an occurrence of that character, or that he might be subject to such a cause of danger. So that the failure to look for approaching vehicles on the street was not necessarily negligence on his part. The fact that a passenger on a street-car stands upon the outer platform, when there is opportunity to take a seat in the car, might, in an action against the railroad company to recover damages, as for its negligence, under ordinary circumstances, constitute a defense: Clark v. Eighth Ave. R. R. Co., 36 N. Y. 135; 93 Am. Dec. 495. But that may not be so when the action is against another party, as the defendant, in such case, cannot assert as a defense the mere duty of the passenger in his relation as such to the railroad company.. We think the question of contributory negligence of the plaintiff was for the jury. And they were permitted, upon the evidence, to find that the negligence of the defendant was the sole cause of the injury. The motion for nonsuit was, therefore, properly denied, unless, as suggested by the defendant's counsel, the plaintiff was chargeable with such negligence by force of the statute, which provides that no minor child, not being a passenger, shall be allowed upon the platform or steps of any street-car, and that it shall be the duty of constables, etc., to arrest any child violating such provision, who, upon conviction, shall be punished by fine not exceeding five dollars for the offense: Laws of 1880, c. 585. While the violation

of such statute may be proved as a fact for consideration by the jury, such violation does not, for all purposes, necessarily establish negligence: Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488. The getting upon the car was not the immediate cause of the plaintiff's injury, and assuming that the plaintiff violated the statute, he was not, for that reason, denied the right to assert the defendant's negligence as the cause of the injury, and charge it with liablity as the consequence: Carroll v. Staten Island R. R. Co., 58 Id. 126; 17 Am. Rep. 221; Platz v. City of Cohoes, 89 N. Y. 220; 42 Am. Rep. 286. In this case, the finding was warranted that the plaintiff got onto the car, not as a passenger, but temporarily, by the invitation of the conductor.

None of the defendant's exceptions were well taken.
The judgment must be affirmed.

CONTRIBUTORY NEGLIGENCE-QUESTION FOR THE JURY.-The question of negligence, as well as that of contributory negligence, is ordinarily one of fact for the jury: Killian v. Augusta etc. R. R. Co., 79 Ga. 234; ante, p. 410, and note; Chicago etc. R'y Co. v. Robinson, 127 Ill. 9; ante, p. 87, and note; Village of J. v. Chapman, 127 Ill. 438; ante, p. 136, and note; Baltimore etc. R. R. Co. v. Kane, 69 Md. 11; 9 Am. St. Rep. 387, and note; Kelly ▼. Inhabitants of Blackstone, 147 Mass. 448; 9 Am. St. Rep. 730; Mynning v. Detroit etc. R. R. Co., 64 Mich. 93; 8 Am. St. Rep. 804, and note 813, with the cases there cited; City R'y Co. v. Lee, 50 N. J. L. 435; 7 Am. St. Rep. 798, and note 801, 802; Delaware etc. R. R. Co. v. Cadow, 120 Pa. St. 559; 6 Am. St. Rep. 730, and note 732; Nugent v. Boston etc. R. R. Co., 80 Me. 62; 6 Am. St. Rep. 151, and note 162; Selinas v. Vermont etc. Soc., 60 Vt. 249; 6 Am. St. Rep. 114, and note 117; Seefeld v. Chicago etc. R. R. Co., 70 Wis. 216; 5 Am. St. Rep. 168, and note 174; Wallace v. Western N. C. R. R. Co., 98 N. C. 494; 2 Am. St. Rep. 346, and note 349; Alabama etc. R. R. Co. v. Arnold, 84 Ala. 159; 5 Am. St. Rep. 354, and note 363.

CONTRIBUTORY NEGLIGENCE OF A CHILD. It cannot be held that the same degree of care should be exacted of a child as of an adult, in order to avoid the imputation of contributory negligence: Houston etc. R'y Co. v. Boozer, 70 Tex. 530; 8 Am. St. Rep. 615, and note; Moebus v. Herrmann, 108 N. Y. 349; 2 Am. St. Rep. 440.

NEGLIGENCE RECOVERY BY ONE WHO VIOLATES THE LAW. — Plaintiff is not necessarily precluded from recovering for injuries received through defendant's negligence because of the fact that, at the time such injuries were received, plaintiff was violating the law: Davidson v. City of Portland, 69 Me. 116; 31 Am. Rep. 253; Platz v. City of Cohoes, 89 N. Y. 219; 42 Am. Rep. 286; Schmid v. Humphrey, 48 Iowa, 652; 30 Am. Rep. 414; Baldwin v. Barney, 12 R. I. 392; 34 Am. Rep. 670; White v. Lang, 128 Mass. 598; 35 Ain. Rep. 402; Wallace v. Merrimack etc. Erp. Co., 134 Mass. 95; 45 Am. Rep. 301; Stewart v. Davis, 31 Ark. 518; 25 Am. Rep. 576; McClary v. Lowell, 44 Vt. 116; 8 Am. Rep. 366, and note 367; O'Connell v. City of Lewiston, 65 Me. 34; 20 Am. Rep. 673; Carroll v. Staten Island R. R. Co., 58 N. Y. 126; 17 Am. Rep. 221; Sutton v. Town of Wauwatosa, 29 Wis. 21; 9 Am. Rep. 534, and note 544.

SCHMITTLER V. SIMON.

[114 NEW YORK, 176.]

ORAL EVIDENCE OF CIRCUMSTANCES ATTENDING EXECUTION OF INStru. MENT IS ADMISSIBLE, as between the parties, to aid in the interpretation of words used therein, where such words, in their application to the instrument of which they are a part, are not entirely intelligible. Where, therefore, a draft was drawn upon the defendant, with the word "executor" after his name, payable at a time specified, with direction to charge the same against the drawer, and of his mother's estate, and the defend. ant accepted it, adding the word "executor" to his name, in an action by the plaintiff, who was the wife and indorsee of the payee, against the defendant, who was the executor of the will of the drawer's mother, evi. dence is admissible, on the part of the defendant, to show that when the draft was drawn it was understood by the plaintiff and her husband that it should be taken upon the security of the drawer's interest in the estate of his mother; that it was then understood between the drawer, payee, and the plaintiff that it was to be paid out of such interest, and that the defendant then stated, in their presence, that he would accept in his capacity as executor, to be paid only out of the drawer's interest in the estate. This evidence is competent as bearing opon the understanding of the relation and the character of liability which the defendant assumed by his acceptance of the draft.

ACTION against the defendant as acceptor of the following draft:

"NEW YORK, February 26, 1877. "Mr. Adam Simon, executor, will please pay to Johannes Schmittler, or his order, on the first day of July, which will be the year 1879, the sum of nine hundred doll., with seven per cent interest, to be paid, besides the amount, yearly, July month, and charge the amount against me and of my mother's estate. WM. J. SCHAREN." Across the face was written: "Accept, Adam Simon, executor." And it was indorsed: "Pay to the order of Mary Schmittler the amount of note. Johannes Schmittler." Other facts appear from the opinion.

Charles C. Smith, for the appellant.
Winchester Hall, for the respondent.

BRADLEY, J. Upon the review of a former trial, where the question presented had relation only to the legal import of the terms of the instrument in question, it was held that it was a bill of exchange, and that the defendant was, upon his acceptance, personally liable to the plaintiff as indorsee of the paper: 101 N. Y. 554; 54 Am. Rep. 737. This is the review of the succeeding trial, and the admissibility of evidence offered by