Cunningham

Plaintiff, an infant of eighteen months, escaped from the premises of its parents into the public street, and went upon the track of defendant’s electric railway, running thereon, and was knocked down and injured by one of its cars. He brought this action to recover damages for the injury, alleging negligence by defendant in running over him. From a judgment in his favor, and an order denying defendant’s motion for a new trial, the latter appeals.

The jury were instructed that, in determining whether the defendant was negligent in not stopping its car so *564 as to avoid the injury, they had the right to take into consideration the fact that the motorman “ had only been at work about twelve days, according to his own testimony, and was a new hand on the road.”

There was no direct issue upon the question whether the defendant had been guilty of employing incompetent servants; the question being whether the plaintiff was injured through the actual negligence of defendant’s servants on the occasion dn question; but the fact adverted to in the instruction had incidentally appeared in the cross-examination of the motorman, when examined as a witness for defendant.

It is objected…