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with my view ahead prior to my seeing the girl and the curve itself." Of the two witnesses sworn for the defendant who were not on the train, one, who was west of the crossing, testified: "When the east-bound train went by there was smoke and steam from that point," and the other who was on the west side of the crossing testified, referring to the girl and how she was dressed: "I couldn't tell at that time, the smoke and steam from the other train was coming down.”

All of the questions involved in the trial, including the question as to whether the plaintiff was sui juris or not, and as to the imputed negligence of the plaintiff's parents, were left to the jury in a charge to which, except as hereafter mentioned, there was no exception and in which the court granted all of the numerous requests to charge made by the defendant's counsel. The defendant excepted to a statement by the court that if the jury found that the plaintiff exercised such care as is required of an adult under similar circumstances, that any negligence on the part of the parents was not imputable to the child, and to the charge of the court that if the jury found the speed of the train was from fifteen to twenty-five miles an hour, and they also found that to be a dangerous and excessive rate of speed in the locality of this crossing that they might then find the defendant guilty of negligence.

165 We find no error in the charge of the court. If a child is capable of exercising the care that is required of an ordinarily prudent person of full age, and such child does exercise such care, the suggestion of negligence on the part of the parents imputable to the child is wholly negatived. The imputed negligence of the parents is wholly based upon the inability of the child to exercise the care and prudence of an adult.

In the absence of signals or safeguards by way of gates or flagmen, a speed of from fifteen to twenty-five miles an hour around a very abrupt curve at a much-used crossing in a city is some evidence to submit to a jury on the question of defendant's negligence: Zwack v. New York etc. R. R. Co., 160 N. Y. 362, 54 N. E. 785.

A child of tender years is not required to exercise the same degree of care and prudence in the presence of danger which is expected and required of an adult under like circumstances, but she is required to exercise such care and prudence as is commensurate with one of her age and intelligence: Wendeli

v. New York etc. R. R. Co., 91 N. Y. 420; Zwack v. New York etc. R. R. Co., 160 N. Y. 362, 54 N. E. 785; Costello v. Third Ave. R. R. Co., 161 N. Y. 317, 55 N. E. 897; Byrne v. New York etc. R. R. Co., 83 N. Y. 620; McGovern v. New York etc. R. R. Co., 67 N. Y. 417; Thurber v. Harlem etc. R. R. Co., 60 N. Y. 326; Berry v. New York etc. R. R. Co., 92 N. Y. 289, 44 Am. Rep. 377.

The opinion of the court in the appellate division concedes that the record discloses a conflict of fact upon all the questions involved between the parties, except the question as to whether the plaintiff was guilty of contributory negligence. In its opinion, referring to the defendant's negligence, the court say that, "By far the greater weight of evidence is to the effect that the speed was not excessive and that the bell was ringing as the train approached the crossing." And also, referring to the amount of the verdict, the court say: "The verdict for the plaintiff on the first trial upon the same evidence as to damages was six hundred dollars, and upor this five thousand dollars. It is grossly excessive."

166 The evidence on the former trial is not before us, but even if it were, and we were inclined to agree with the appellate division as to the weight of the testimony relating to the defendant's negligence, and as to the amount of the verdict, this court cannot consider the weight of evidence or questions relating to an excessive verdict: Dimon v. New York etc. R. R. Co., 173 N. Y. 356, 66 N. E. 1.

As we have stated, we can only consider whether the reversal of the judgment entered upon the verdict should be sustained as a matter of law. We cannot agree with the appellate division in holding as a matter of law that the plaintiff was guilty of contributory negligence. In view of the plaintiff's age; the peculiar danger arising from the abrupt curve in the defendant's road; the noise and confusion produced by the east-bound train; the extent to which the view to the east was obscured by the train going east; and the smoke and steam therefrom, it made the plaintiff's negligence, under all the circumstances and testimony disclosed by the record, a question of fact which was properly submitted to the jury.

The distinction between the facts in this case and those in cases like Weiss v. Metropolitan Street Ry. Co., 33 App. Div. 221, 53 N. Y. Supp. 449, affirmed, 165 N. Y. 665, 59 N. E. 1132, McCarthy v. New York etc. R. R. Co., 37 App. Div.

187, 55 N. Y. Supp. 1013, Wendell v. New York etc. R. R.. Co., 91 N. Y. 420, is apparent upon their recital.

There was some evidence upon each of the questions at issue which required that all of the issues involved in the action be submitted to the jury for their determination.

We have examined the exceptions to the admission and rejection of evidence and do not find any error in the rulings of the court which justified the reversal by the court below.

The order of the appellate division should be reversed and the judgment entered upon the verdict affirmed, with costs in all the courts.

Cullen, C. J., Edward T. Bartlett, Haight and Willard Bartlett, JJ., concur.

Gray and Hiscock, JJ., not sitting.

Order reversed, etc.

Negligence in Dealing With Children is the subject of a note to Barnes v. Shreveport City R. R. Co., 49 Am. St. Rep. 406. The negligence of a parent is not, according to the better rule, imputable to his child: Mattson v. Minnesota etc. R. R. Co., 95 Minn. 477, 111 Am. St. Rep. 483; Hampel v. Detroit etc. R. R. Co., 138 Mich. 1, 110 Am. St. Rep. 275, and note on imputed negligence. As to the degree of care which will be exacted of children while in the publie streets, see Young v. Small, 188 Mass. 4, 108 Am. St. Rep. 457; Lee v. Jones, 181 Mo. 291, 103 Am. St. Rep. 596. Generally speaking, a child is held to that degree of care and prudence reasonably to be expected of children of his age. But they are not held to a higher degree than this: McDermott v. Boston Elevated Ry. Co., 184 Mass. 126, 100 Am. St. Rep. 548; Buechner v. New Orleans, 112 La. 599, 104 Am. St. Rep. 455. As to whether it is negligence for a parent to permit his children to go unattended in the public street, or near or upon railway tracks, see the note to Hampel v. Detroit etc. R. R. Co., 110 Am. St. Rep. 285.

It is the Duty of a Railway Company running trains through a populous city to use ordinary care to regulate the speed of the train, so as not to injure anyone, and a failure to exercise such care is commonlaw negligence: Haley v. Missouri Pac. Ry. Co., 197 Mo. 15, 114 Am. St. Rep. 743.

SHERRILL v. O'BRIEN.

[188 N. Y. 185, 81 N. E. 124.]

CONSTITUTIONAL LAW.-The Authority of the Judicial Department Both of the State and of the National Government to Determine the Validity of Legislative Acts is no longer an open question. (p. 844.)

CONSTITUTIONAL LAW.-The Authority of the Supreme Court of New York to Consider and Determine the Validity of an Apportionment Act dividing the state into senatorial districts is expressly conferred by the constitution of that state. (p. 844.)

APPELLATE PROCEDURE-Authority of the Court of Appeals of New York to Determine Questions of Legislative Apportionment. The constitution of the state of New York having given its supreme court authority to review legislative apportionments, the action of that court is the subject of further review by the court of appeals by virtue of the general grant of authority to it to review orders made by the supreme court finally determining special proceedings, but is restricted to the determination of questions of law only. (pp. 844-846.)

CONSTITUTIONAL LAW-Review by the Courts of Legislative Apportionments.-The courts have jurisdiction to determine whether or not an act of apportionment is in conflict with the limitations of the constitution, and if such conflict is found, to declare the act void. (p. 846.)

CONSTITUTIONAL LAW-Legislative Apportionments, Cases in Which Reviewable by the Courts.-The courts may review legislative action in reapportioning the state (1) when the question to be determined on the appeal is as to whether the legislature has obeyed the mandatory provisions of the constitution, and (2) when the legislature, though assuming to exercise a discretion extended to it, does a thing which is a mere exercise of arbitrary power, and which, in view of the provisions of the constitution, is beyond all reasonable controversy a gross and deliberate violation of the plain intent of the constitution and a disregard of its spirit and the purpose for which express limitations were inserted therein. (pp. 846, 847.)

CONSTITUTIONAL LAW.-The Authority of the Representatives in the Legislature is a Delegated Authority and is wholly derived from, and dependent upon, the constitution, but, having been granted in general terms by the constitution, is absolute and unlimited, except as restricted therein. (p. 847.)

CONSTITUTIONAL LAW-Legislative Apportionment, Principles Which Should Control.-Under the several constitutions at various times in force in New York equal representation in proportion to the population has been and is a cardinal principle which should control legislation in reapportioning the state. (p. 850.)

CONSTITUTIONAL LAW-Interpretation of Constitution by Aid of Proceedings in the Constitutional Convention.-The courts may properly look, when construing the constitution, to proceedings in the convention proposing it. (p. 852.)

CONSTITUTIONAL LAW-Apportionment Legislation, Limitations upon. As the discretion of the legislature respecting the relative number of inhabitants in a Senate district arises from necessity, it should cease where the necessity for discretion ends. (p. 854.)

CONSTITUTIONAL and Statutory Construction.-Where a Word in the Amendment or Re-enactment of a Constitution or Statute is Omitted, the omission must be assumed to have been intentional. (p. 854.)

CONSTITUTIONAL LAW-Legislative Apportionment.-Every provision of the constitution which allows any discretion by the leg islature in apportionment must, to some extent, be affected and con trolled by every other provision of the constitution, but in the division of the state into senatorial districts, matters of mere convenience and individual taste are not subjects for consideration. (p. 854.)

CONSTITUTIONAL LAW-Apportionment-Legislative Extent of Discretion with Respect to Senate Districts.-The legislature, in dividing the state into senate districts, must make as close an approximation to equality in the number of inhabitants as reasonably possible in view of the other constitutional provisions, and such approximation is the limit of legislative discretion. (p. 854.)

CONSTITUTIONAL LAW-Apportionment Legislation.-The words contiguous thereto," as used in the constitution in providing for apportionment legislation, do not mean near by or in the neighborhood or locality of, but territory touching, adjoining and connected, as distinguished from territory separated, by other territory. (p. 854.)

CONSTITUTIONAL LAW-Apportionment of Senate Districts, Each County, When Entitled to One.-Every county having a citizen population in excess of the ratio required for a Senate district is entitled by the constitution to at least one senator without being joined with any other county. (pp. 856, 857.)

CONSTITUTIONAL LAW-Apportionment Legislation.-Under a constitution requiring Senate districts to be in as compact a form as practicable, an apportionment statute may be declared unconstitutional because a Senate district as provided for therein is not reasonably compact. (pp. 857, 858.)

CONSTITUTIONAL LAW-Apportionment Legislation, When may be Declared Wholly Void.-If under an apportionment statute its provisions concerning two Senate districts must be declared void, the whole statute must also be adjudged unconstitutional and void. (p. 858.)

CONSTITUTIONAL LAW-De Facto Legislature. The acts of a de facto legislature, so long as its members remain actual incumbents of their offices, are valid. (pp. 850, 851.)

CONSTITUTIONAL LAW-Legislative Apportionment, Effect of Declaring Unconstitutional. If a legislative apportionment is pronounced unconstitutional, the next general election at which members are chosen must be held under the pre-existing statute, unless in the bents of their offices, are valid. (pp. 858-861.)

Proceedings by mandamus for the purpose of obtaining an order directing the Secretary of State to transmit to the county clerk of each county and to the board of elections of the city of New York election notices as provided by the election law, and to embrace in such notices the number of senators and members of assembly to be voted for at the election to be held in November, 1906, under the apportionment contained in the constitution of the state, and not according to the apportionment contained in chapter 431 of

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