
    MARY F. AMES, BY GUARDIAN, &c., Respondent v. THE BROADWAY & SEVENTH AVENUE R. R. CO., Appellant.
    
      Infants non sui juris—Negligence.
    
    Parents and guardians are bound to use reasonable care to protect infants, non sui juris, and if they fail to exercise such care and the infant is thereby brought into danger and suffers injury from the negligent act of another, their negligence is deemed the negligence of the infant.
    In this case the mother allowed plaintiff, an infant five years of age, to play in a certain court having near and easy means of access into the street, telling her not to leave the door. The infant went into the street and was there injured through the negligence of defendant’s servant. Held, that the question whether or not this permission to the infant to play in the court, without continued supervision or protection against • her going outside the court into the street, was negligence on the part of the mother, was properly submitted to the jury.
    Before Freedman and O’Gorman, JJ.
    
      Decided May 7, 1888.
    Appeal from a judgment entered on the verdict of a jury in favor of plaintiff, at trial term, and from order denying motion for new trial made on the minutes, etc.
    The action was brought to recover $20,000 damages for personal injuries alleged to have been sustained through the negligence of the defendant.
    The plaintiff, an infant, under five years of age, while crossing University Place in March, 1884, between five and six o’clock in the evening, was run over and seriously injured by one of defendant’s horse cars. The jury found a verdict in her favor of $5,500. The learned trial judge left the question of the negligence of the defendant’s servants to the jury. As to the question of negligence on the part of the plaintiff, he held that if she had been sui juris, her negligence, as proved would have prevented her recovery, but that she, not being sui juris, by reason of her infancy, the question arose whether the negligence of her mother, under whose charge and control she was, constituted contributory negligence, and that question the trial judge left to the jury, as matter of fact. The defendant’s counsel moved for dismissal of the complaint; requested that the trial judge should direct a verdict for the defendant; moved for a new trial, and duly took exceptions to the rulings against him, and has appealed therefrom and from the judgment.
    
      Root & Strong, attorneys, and Theron G. Strong of counsel for appellant, on the questions considered in the opinion, cited:—
    Honesberger v. Second Avenue R. R. Co., 1 Keyes 572; Thurber v. H. B. M. & F. R. R. Co., 60 N. Y. 333; Wendell v. N. Y. C. & H. R. R. Co., 81 Ib. 420; Cosgrove v. Ogden, 49 Ib. 255; Mangam v. Brooklyn R. R. Co., 38 Ib. 455; Prendegast v. N. Y. C. & H. R. R. Co., 58 Ib. 652; Chrystal v. Troy & Boston R. R. Co., 105 Ib. 164.
    
      Lucius McAdam, attorney, and Christopher Line of counsel for respondent, as to the questions considered in the opinion, cited :—
    
      Kunz v. City of Troy, 104 N. Y. 344; Ihl v. Fortysecond St. R. R. Co., 47 Ib. 318; Mangam v. Brooklyn R. R. Co., 38 Ib. 455; Murphy v. Orr, 96 Ib. 14; McGuire v. Spencer, 91 Ib. 303; Fallen v. C. P. &c. R. R. Co., 64 Ib. 13; Cosgrove v. Ogden, 49 Ib. 255; Lynch v. Norden, 1 Ad. & Ell. (N. J.) 29.
   By the Court.—O’Gorman, J.

(after stating the facts as above)—The chief question now to be discussed is whether the issue, as to the .contributory negligence of -the plaintiff’s mother, should not have been decided by the court, as a question of law.

The learned trial judge was, in my opinion, right in refusing to do so.

The material facts are these: The infant plaintiff lived with her mother, on the first floor of a house in .Union Court, which was a court-yard opening on the west side of University Place, between East Eleventh and East Twelfth streets, and communicating with University Place, by a passageway, about nine feet wide. This Union Court was about thirteen feet wide, and contained a few houses, of which, that in which the plaintiff lived, was the second from the passageway leading to University Place. On the day of the injury to the plaintiff, she had asked her mother to let her go out, and her mother let her out a little while to play in the court-yard, then she came in again; then, she pressed her mother to let her out again for a little while. Her mother put on her hat and told her not to go from the door. The child said “ no, mamma.” Her mother told her to play about the front of the house there—not to go away from the door. The mother then left her, in order to attend to another of her children, and within five minutes afterwards, the information reached her that the plaintiff had been run over. The plaintiff had been accustomed to play in the court a good deal, but on this occasion, it appears that she went with another child, who lived in the court, to a candy store on the east side of University Place, and on recrossing that street in order to return to Union Court, the plaintiff was run over.

Did this evidence supply such proof of negligence on the part of the mother, contributing to the disaster, as required, or authorized the court to charge the jury, as matter of law, that such negligence had existed ? In my opinion, it was not negligence per se, in the mother to allow the plaintiff to play in the court. McGarry v. Loomis, 63 N. Y. 107. The important question is, whether the fact, that near and easy means of access into the street from the court existing, through which the plaintiff could stray into the open street, the permission given by her mother to her to play in the court, without continued supervision, or protection against her going outside the court into the street, was not negligence per se, on the part of the mother. Was it an. omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case ? Mangam v. Brooklyn R. R. Co., 38 N. Y. 457.

Negligence is a question of fact, and should be left to the jury, as such, when men of ordinary prudence may differ as to the character of the act, under the circumstances of the case, the positions and conditions of the parties. Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y., 427.

In Kunz v. City of Troy, 104 N. Y. 350, the obligation of the parent of an infant non sui juris, is thus described :—“ The law exacts no impossibility. It does not require an infant, before reaching the age of discretion, to exercise discretion. But it imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such care, and the infant is thereby brought into danger and suffers injury from the negligent act of another, their negligence is deemed the negligence of the infant.” In that case, the father left his infant son, for a few minutes, unattended on the sidewalk, which was there incumbered by fixtures taken from a store near by, and heaped on the sidewalk. One of these fixtures fell upon the child. The court of appeals' decided that the dismissal of the complaint was error, and that the case should have gone to the jury.

There is this similarity between the facts of that case and those of the case at bar. The permission of the father to the child to walk on the sidewalk, was not per se negligent. The question for the jury was, whether the fact that a part of the sidewalk was dangerous, and within easy reach of the child did not make the permission given, negligence.

The question of negligence in the driver of defendant’s car was also properly left to the jury.

The exceptions to the various rulings of the trial judge, are not well taken.

That part of the judge’s charge in which the use of the word “vigilant” occurs, and which is objected to, is similar to the charge of Judge Grover, in Mangam v. Brooklyn R. R. Co. (supra), page' 456, and was besides, so explained by the rest of the charge, as to be wholly unob j ectionable.

The judgment and order should be affirmed with costs.

Freedman, J-, concurred.  