
    KELLY v. HUDSON COS.
    (Supreme Court, Appellate Term.
    January 21, 1910.)
    1. Municipal Cobpobations (§ 801)—Sidewalks—Right of Child to Plat Thebeon.
    It is not unlawful or negligent for children on the sidewalk to play, and they are entitled to the same protection as if using the sidewalk for the ordinary purpose of travel.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1660-1665; Dec. Dig. § 801.]
    
      2. Negligence (§ 35)—Abutting Owneb—Condition of Premises—Care as to Children.
    While an abutting property owner is not bound to make premises a safe playground for children, yet where he knows, or might reasonably anticipate, that children would play near his premises, he must exercise such care as-would at least protect them from hidden danger; and where children were playing on a sidewalk adjacent to defendant’s premises, to the knowledge of its foreman, it was the foreman’s duty to warn them of the danger of leaning against a hanging grating, 28 inches high, covering an opening to the basement, or to guard against the danger by securely fastening the grating, and defendant was liable for his failure to do so, resulting in the fall of one of the children into the basement, causing his injury.
    [Ed. Note.—Eor other cases, see Negligence, Cent. Dig. § 54; Dec. Dig. § 35.]
    3. Appeal and Error (§ 1004)—Questions of Fact—Amount of Damages.
    The jury’s award of damages for injuries to a child will not be held excessive on appeal, where that can only be done by disregarding the evidence of the child’s mother, which is not so improbable as to compel disbelief.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.]
    Appeal from City Court of New York, Trial Term.
    Action by James Kelly, an infant, against the Hudson Companies. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.
    Affirmed.
    Argued before GIEGERICH, DAYTON, and LEHMAN, JJ.
    Thatcher, Simpson & Bartlett (Thomas D. Thatcher, of counsel), for appellant.
    Charles Steckler (Levin L. Brown, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, 8; Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   LEHMAN, J.

The plaintiff, a child two years old, was playing on the street with his brother. He leaned against a hanging iron grating, which was "suspended from the top of an opening in the defendant’s premises abutting on the street. The grating apparently gave way, and the boy fell through the opening into the cellar. The defendant claims that this opening was only 28 inches high, that the grating weighed 100 pounds, and was usually securely fastened, and was unfastened that morning five hours before the accident only to allow the removal of heavy goods from the cellar. The defendant’s foreman knew that the children were playing about the premises, and claims that he told them several times to go away, but does not claim that he warned them of any danger. Upon these facts the jury brought in a verdict for the plaintiff, and the defendant appeals on the ground that no negligence on the part of the defendant has been shown.

While the plaintiff’s witnesses state that the grating was four feet high and deny that any goods were being moved at the time, I think that the defendant’s testimony on these points was more accurate and more credible, and if that testimony, if believed, is sufficient to negative as a matter of law the alleged negligence of the defendant, then the defendant might argue that the verdict is against the weight of evidence. It seems to 'me, however, that even from the defendant’s testimony the jury might well draw the inference that the defendant has not complied with its duty of using reasonable care to protect a child lawfully using the street, from injury. “It is not unlawful, wrongful, or negligent for children on the sidewalk to play” (McGarry v. Loomis, 63 N. Y. 104, 108, 20 Am. Rep. 510), and the plaintiff was entitled to the same protection as if lie were using it for the ordinary purposes of travel (McGuire v. Spence, 91 N. Y. 303, 43 Am. Rep. 668). That dluty does not impose upon the abutting property owner the burden of making his premises a safe playground for -children. He is not liable, for instahce, for failure to place a railing or gate across a stairway lawfully erected to his cellar. White v. Daniels, 39 App. Div. 668, 57 N. Y. Supp. 305; Rothlein v. Stajer, 88 N. Y. Supp. 921. Where, however, the defendant knew or might reasonably anticipate that children would play near his premises, he must exercise such care as would at least protect them from hidden danger. In the case of Cleary v. Blake, 14 App. Div. 602, 43 N. Y. Supp. 1115, a child fell through a door that had been apparently closed, but not securely fastened. The court held that, since the defendant had no reason to anticipate that a boy would lean against the door, he was under no duty to see that it was securely fastened; but if they, his employés, “could reasonably have-anticipated that a boy would stop and lean or press against this door, common prudence required that they should see to it that the door was not' left so slightly fastened as readily to open and permit one to be thrown to the cellar floor, which was several feet below the level of the alley.”

It seems to me that this is exactly the situation presented by this case. The opening was only 28 inches high, and the defendant could not have anticipated that any person except a small child would fall through, even if he leaned against it. Its foreman, .however, knew that these children played there, and, though he claims that he sent -them off, they deny this, and in any event the foreman knew that they kept returning. Common prudence, therefore, required him to warn them of the danger to which this small boy was exposed, or required him to guard against the danger by .secflrely fastening the grating. He had no right to leave it, in a position where a child might lean against it, so insecurely fastened that it gave way and precipitated the child into the cellar.

The appellant also claims that the damages are excessive. Concededly they are excessive only if the testimony of the plaintiff’s mother is to be disregarded. Her story is not so improbable that we are forced to believe it untrue. The jury saw her and the. child, andi could judge of its truth better than we.

The judgment should be affirmed, with costs. All concur.  