
    MARY A. RYDER, by Guardian, etc., Respondent, v. THE MAYOR, etc. of New York, Appellants.
    
      Decided March 26, 1884.
    
      Negligence—infancy, rights and obligations arising out of—when infant sui juris.
    
    The plaintiff, a bright and intelligent child, under five years of age, while engaged in play with other children, in broad daylight, and while running about, went into an excavation made by defendants in the highway, near the curbstone of the sidewalk in front of plaintiff’s residence. The excavation had been there for some time, and plaintiff had been warned by her parents and others not to go upon the street upon that account, and was there without their permission. The jury found a verdict for plaintiff,—Held, on appeal, that notwithstanding the unusual intelligence of the infant, there is no authority requirng that a child of her years should be held sui juris; that plaintiff had the right to use the sidewalk even for play; also that the question whether or not the plaintiff or her parent, or both, were negligent, was properly left to the jury.
    The principles and authorities as to rights and obligations in these cases of infants not sui juris, reviewed and stated by the court.
    The evidence showed that plaintiff’s arm was fractured and afterwards became and remained disfigured, the jury awarded as damages $6,600, —Held, that the general term has the power and is bound to interpose on the question of damages when the interests of justice may require it; that the damages in this case were excessive, and should be reduced to $3,000.
    Before Sedgwick, Ch. J., Truax and O’ Gorman, JJ.
    
      Appeal from judgment in favor of the plaintiff for $6,600 on verdict of a jury, and from an order, denying a motion for a new trial.
    At the close of plaintiff’s evidence and of the case, defendant’s counsel moved to dismiss the complaint, on the fol lowing grounds : First. That there was no evidence of any negligence on the part of the city. Second. That there was evidence of contributory negligence on the part of the plaintiff. The court ruled that the question whether plaintiff was sui juris or non sui juris, was a question for the jury, and denied the motion for a non-suit, to which defendants’ counsel excepted.
    The action was for damages for a personal injury, and the evidence showed that plaintiff’s arm was fractured, and that it thereby became and remained disfigured at the elbow.
    Further facts appear in the opinion.
    
      George P. Andrews, corporation counsel, and Charles Blandy, for appellants.
    
      Joseph Kohler and Charles P. Miller, for respondent.
    The motions to dismiss the complaint were properly denied and the defendants’ exceptions are not well taken. Defendants’ negligence was clearly proven. The plaintiff being at the time of the accident only four years and eight months of age, the court would not have been justified in dismissing the complaint on the second ground urged by the defendants, even had the evidence shown conclusively that her personal negligence had contributed to the injury, for this would have compelled the court to decide, as matter of law, that the plaintiff was “ sui juris." Sucha decision would have been erroneous. Had the court, on the other hand, decided as a matter of law that the plaintiff was “ non sui juris," it is probable that its decision on this point would have been sustained on appeal (See McGarry v. Loomis, 63 N. Y. 104; Munally v. Spence, 15 Abb. Pr. N. S. 320). It is clear, however, that had the court held the plaintiff to be “non sui juris," the question of her personal negligence could not have been considered, and to have dismissed the complaint on the ground of contributory negligence, the court would have been obliged to hold, as matter of law, that the mother’s negligence (her daughter being non sui juris) contributed to the injury. This, under the evidence, would clearly have been error (McGarry Loomis, supra). The court, therefore, not having decided as matter of law that the plaintiff was non sui juris, was compelled to leave the question of contributory negligence to the jury (Cosgrove v. Ogden, 49 N. Y. 255 ; Mangam v. B. R. R. Co., 38 Id. 455 ; McGarry v. Loomis, supra; Mullany v. Spence, supra; Ihl v. Forty-second St. R. R. Co., 47 N. Y. 318 ; Fallon v. C. P. N. & E. R. R. R. Co., 64 Id. 13; Thurber v. Har. R. R. Co., 60 Id. 333 ; McGuire v. Spence, 91 Id. 306).
   By the Court.—O’ Gorman, J.

On May 19, 1875, the plaintiff, Mary A. Ryder, then an infant between four and live years old, fell into an excavation made by the defendants in Eightieth street between Third and Second avenues, and was injured thereby. This excavation was made for the purpose of laying a 48-inch main in the street, and it extended all along, and parallel with the southerly side of the street, a space of about three feet being left between the southerly edge of the excavation and the curbstone of the southerly sidewalk, and this excavation had existed for several weeks before the accident. The plaintiff lived with her father and mother in a tenement house on the south side of the street. In the progress of this excavation, the paving stones which had been taken up, were gathered in piles three feet high and twenty or twenty-five feet apart on the southerly sidewalk. One of these intervals or gaps between piles was before the house in which the plaintiff thén lived. Previous to the accident, the street between the curbstone and the excavation before the plaintiff’s said house had caved in and the curb had settled considerably, making the sidewalk there incline towards the cut. At about five o’clock in the afternoon, and in broad daylight, the plaintiff was found in the excavation in front of the house, but how exactly she got into it, the evidence does not disclose. Five or ten minutes before, she had got leave from her mother to go down stairs to the water-closet,—had been warned by her mother not to go to the street,—did go out on the sidewalk,—met there some other children, with whom she played tag, and in running about with them she went right into the hole. She had been forbidden by her mother to go into the street that day, because of this excavation into which she fell. She knew the opening was there. She had been warned not to go near the hole by her father the night before, and promised her father not to go near it. She got the same warning from her sister and made the same promise, and she knew what it meant. She seemed, from the evidence, to have been a particularly bright and intelligent child, in possession of all her senses and faculties.

The questions now to'be considered are: First. Was ¡here proof of negligence on the part of the defendants': Second. Did the evidence show that the plaintiff’s negligence contributed to the injury % Third. Was the verdict against the weight .of evidence, or excessive %

It is convenient that the second of these questions should be first examined.

Notwithstanding the unusual intelligence of the infant plaintiff, at the time of her accident, she was then under five years of age, and I do not know of any authority hold-that an infant so young should be regarded as “ sui juris ” (McGarry v. Loomis, 63 N. Y. 106). But whether suijuirs or not, if she, by want of such care and caution, on her own part, as could have been fairly expected and due, from one of her years, and knowledge of the existence and nature of the danger to be guarded against, had caused the injury, such negligence on her part would go far to defeat this action. If “sui juris” it would be negligence, imputable to herself (Wendell v. R. R., 91 N. Y. 426 ; Thurber v. R. R., 60 Id. 333-4). If not “ sui juris” and her parents had been negligent in leaving her free to run at large on the sidewalk, defective as it was, and so near a dangerous excavation, then their negligence, concurring with her negligence, would defeat the action (Reynolds v. R. R., 58 N. Y. 248 ; Ihl v. R. R., 47 Id. 322). She had no doubt the right to use the sidewalk even for play (McGuire v. Spence, 91 N. Y. 303-6; McGarry v. Loomis. 63 Id. 107). But warned, as she was,, of the dangerous excavation, so near the sidewalk, if she, by recklessness, or the want of such ordinary care as was due from her, considering her age and intelligence, fell into the chasm, it would be imputable to her as contributing negligence (Honegsburger v. R. R. 1 Keyes, 570 ; cited in 91 N. Y. 426).

Whether the - evidence of contributory negligence on the part of the infant plaintiffs here, or her parent, or both, was sufficient as matter of law to have made it proper for the trial judge to dismiss the complaint, is a question not free from doubt, but the preponderance of authority seems to me in favor of leaving it as matter of fact to the jury (McGuire v. Spence, supra; Stackus v. R. R., 79 N. Y. 466). The question as to the existence of negligence on the part of the defendants, was also rightly left to the jury as a question of fact. Although they had the right to dig the excavation in question and it was done in pursuance of their civic duties, and although they do not guarantee the absolute safety of the public streets, yet they are bound to take reasonable precaution for the protection of citizens, and whether they have done so in this case is a question of fact.

The next question is as to the amount of damages, and, there this court has the power, and is indeed bound to interpose whenever the interest of justice requires (Houghkirk v. President, &c., 92 N. Y. 222). In this respect the verdict here is not warranted by the evidence. Beyond rhe injury to the plaintiff’s arm, for which she is entitled to substantial damages, there is no sufficient reliable testimony that she received any other injury by reason of her fall into the excavation, of which the negligence of the defendants was the proximate cause. For this injury to her arm, which was neither grave nor lasting in its effect, the verdict rendered by the jury, $6,600, would be clearly unreasonable and excessive.

The accident occurred on May 19,1875. The weight of evidence is that she made no complaint of pain in her hip until the winter of 1879. The action was begun in December, 1882.

After a careful examination of the evidence we have come to the conclusion that the verdict at its present amount should not stand. Unless, therefore, the plaintiff consents to accept the sum of $3,000 in full satisfaction of the claim in suit, there must be a new trial, with costs to abide the event; and the order denying the motion for a new trial should be reversed, with $10 costs.

Sedgwick, Ch. J., and Truax, J., concurred.  