
    Joseph Albert, as Administrator, etc., of Loretta Albert, Deceased, Respondent, v. Albany Railway Company, Appellant.
    
      Negligence — child non. sui juris — what negligence of a pa/i'ent in allowing it to cross railroad tracks, presents a question of law.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared • that the deceased, a girl aged three years and four months, residing with her parents at a. place about two blocks from South Pearl street m the city of ■ Albany, was with her sister, aged five, sent by their mother to a shoe store on South Pearl street to get shoes which had been left there for repair. The cars, of the defendant, moved by electricity, ran through this street about every ten minutes, and in order to reach the shoo store the children were compelled to-cross the track, which they did in safety, and then crossed back to a candy store; they then attempted to cross again to the side upon which the shoe store-was located, the eldest child going first, and only a short distance ahead of an approaching car, and the younger child attempting to follow her, when she was struck by the car and was killed.
    Upon the trial of the action, the mother testified that she considered that the-place was dangerous for children, and that she told them when they started to-be very careful of the cars.
    
      Held, that a verdict in favor of the plaintiff could not be sustained;
    That although the question as to wliat constituted such negligence in a parent a» would prevent a recovery in an action brought to recover damages for the death of' a person non sui juris, negligently killed while playing upon a public street, depended, upon the circumstances of each case and must usually be submitted to the jury, yet the fact that, in the present case, the mother sent the child, without protection or control, into a locality known to her to be dangerous, and where the child would be liable to meet with such an accident as actually did occur, constituted gross carelessness upon her part and necessitated a reversal of the judgment.
    Appeal by the defendant, the Albany Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 24th day of May, 1895, upon the verdict of a jury rendered after a trial at the Albany Circuit, and also from an order entered in said clerk’s office on the 4th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      S. W. Rosendale, for the appellant.
    
      J. Newton Fiero, for the respondent.
   Parker, P. J.:

The infant daughter of the plaintiff, aged three years and four months, while attempting to cross South Pearl street, in the city of Albany, was run over by one of the defendant’s trolley cars and killed. This action is brought under the statute to recover damages for the loss which her next of kin have sustained by reason of her death. Upon the trial the jury gave a verdict against the defendant for $3,000, and from the judgment entered thereon and from an order denying the defendant’s motion for a new trial this appeal is taken.

The child was run over while attempting to cross the tracks in front of an approaching car. The car was in plain sight and but a short distance away when she entered upon the tracks, and it is plain from the evidence that had she been of mature years her own negligence so far contributed to the injury that it would have barred a recovery in this action. But she was plainly “ non sui juris” and her own negligence, therefore, will not have that effect.

Put the first question that presents itself to us is, whether the child’s parents were so free from contributory negligence that the action ean be sustained. It is the settled rule in this State that it is not negligence, as matter of law, for parents to permit a child non sui juris ” to play in tlie public streets of a city. The question of negligence depends upon the circumstances of each case, .and is usually one for the jury. In this case the jury have evidently found that the parents were free from negligence, but with that conclusion we are not able to agree. The father of the child, being away at his work, the children were left in their mother’s care at home. The family residence was something over two blocks from South Pearl street. On the afternoon of April 27, 1892, the mother sent this little child, in company with her sister, a child five years of age, to a shoe store in South Pearl street to get their shoes, which had been left there for repair. To reach that store they were obliged to cross the railroad track running through such street. This fact was known to the mother when she sent them, and she testified that she thought it was a dangerous place for children, and that she told the children, ■when they started, to be very careful of the cars. The children went to the shoe store, crossing the tracks in safety. They then ¡safely crossed back to a candy store. They then attempted to uncross to the east side, on which the shoe store was located. The eldest went ahead, but a short distance ahead, of the approaching «car. The little one, in attempting to follow her, was struck by the car and killed.

Under these circumstances, which are not disputed, we are of the ■opinion that the mother was guilty of such negligence as prevents a recovery for the death of her child. Both of the children were of ¡such tender age that neither could be expected to exercise any judgment or care forherself, or appreciate any threatening danger. They were deliberately sent into the neighborhood of a railroad track, where cars run by electricity were passing as often as once in every ten minutes. They were sent on an errand that required them to ■cross such track; they were in charge of no one, and at liberty to play about that dangerous locality as long as they chose, and in the unrestrained and careless manner that would naturally be expected from children of that age.

In our judgment such conduct was gross carelessness on the part ■of the mother, and the cases to which our attention has been called by the plaintiff’s counsel do not hold otherwise. In all of those ■cases it is held that the question of negligence must depend upon the circumstances of each case, and in neither of them were the circumstances such as are now presented to us. We place this decision upon the ground that the mother sent this child without protection into a locality known to her to be an exceedingly dangerous one, and where the child would be very liable to meet with the very accident that did occur. No case to our knowledge has sustained, or allowed a jury to sustain, such conduct on the part of a parent, nor are we inclined to do it in this case.

The judgment and order are reversed and a new trial granted, costs to abide the event.

Merwin, Putnam and Edwards, JJ., concurred; Landon and Herrick, JJ., not sitting.

Judgment and order reversed, and a new trial granted, costs to abide the event.  