
    Mary Carr, as Administratrix, etc., of Hazel Carr, Deceased, Respondent, v. The Merchants’ Union Ice Company, Appellant.
    
      Negligence—a child two years of age run over on a city street—a charge that, the the child being-non sui juris, its mother's negligence was not imputable to it if the child itself exercised due care •— theoretically right but wrong in its application to the case—a charge that the jury might find that the child was not negligent also wrong.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, an infant about two years old, it appeared that the decedent and her sister, who was four years of age, resided with their mother on the south side of a street in the city of New York; that on a July afternoon-, the decedent, her sister and their mother stood at the door of their residence; that the mother, after directing the elder daughter to sit down and keep the decedent by her . side, went upstairs for the. purpose of getting some bread for the elder daughter; that in the meantime the decedent crossed to the northerly side of the street to play with.some children; that at this time the defendant’s wagon was coming along the street from one to five feet from the northerly curb; that the horses were trotting and there was evidence to show that the driver was engaged in conversation with his helper and was not looking ahead or paying attention to where he was driving; that as the horses were passing opposite the decedent, she stepped off the curb and in so doing or in taking the second step was struck by one of the horses and was run over and crushed by the right front wheel of the wagon. 1
    The court, after instructing the jury that, ás a matter of law, the child was non sui juris and that if the mother was negligent in leaving the child upon the street, such negligence was imputable to the child and would defeat a Recovery, instructed the jury that if they found “that the child exercised the degree of care and.precaution required of a person possessing sufficient discretion and ability to care - for its own safety, then the negligence o'f, the mother, if you find from the evidence that, there was any, in permitting the child to be on the street, is immaterial and it is no defense to the action.”
    The court also remarked, “They might find the child was not guilty of negligence, and in that ease the plaintiff would he entitled to recover irrespective of the negligence of the mother.”
    
      Held, that while the proposition of law involved in the first instruction was correct as an abstract proposition, it did not apply to the case at bar, as, if the decedent had been an adult, she would have been chargeable with contributory negligence as a matter of law;
    That the second instruction was also erroneous and misleading in that it indicated that the jury were to consider whether the child was negligent;
    That this was not a proper subject for the consideration of the jury, as the child was non sui juris and was-not chargeable with personal negligence.
    
      Appeal by the defendant, The Merchants’ Union Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1903, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 28th day of May, 1903, denying the defendant’s motion fór a new trial made upon the minutes.
    
      Franklin Pierce, for the appellant.
    
      George B. Hayes, for the respondent.
   Laughlin, J. :

This is a statutory action to recover zfor the death of Hazel Carr,, an infant two years two months and six days old, alleged to have been caused by the negligence of the driver of one of the defendant’s ice wagons.

On the afternoon of the 31st day of July, 1902, the mother of the decedent was at the street door of No. 342 West Thirty-sixth street, where she resided with her daughter Ella, who was a little-over four years of age, and the decedent. Ella asked her mother for something to eat and the mother, according to. her testimony, after directing Hazel to sit down and Ella to sit down and keep Hazel by her side, went upstairs for the purpose of getting bread for Ella and was gone about three minutes. The evidence shows that in the meantime Hazel, in answer to a call, crossed to the opposite sidewalk where other children were playing. At this time defendant’s wagon was coming along the street from fhe east with the horses on a “ jog ” or dog trot.” There was evidence tending to show that the driver was engaged in conversation with his helper and not looking ahead or paying attention to where he was driving, although children were playing in the carriageway ahead. The evidence tended to show that the course of the wagon was from one to five feet from the northerly curb, and that as the horses were passing opposite the decedent, who was on. the northerly sidewalk at the edge of the curb, she started back, evidently intending to recross the street, and either in stepping from the curb or in taking the second step, was struck by the right front leg of the off horse, or fell between his front and hind legs, or between his hind legs and ■the front wheel, and was run over and crushed by the right front wheel.

The court properly instructed the jury that as matter of law the child was non. sui juris and that if the mother was negligent in leaving the child upon the street under the circumstances, that negligence was imputable to the child and would defeat a recovery ; ibut the court further instructed the jury that if they found that the child exercised the degree of care and precaution required of a person' possessing sufficient discretion and ability to care for its own ssafety, then the negligence of the mother, if you find from the evi•dence that there was any, in permitting the child to be on the street, "is immaterial and it is no defense to the action.”1 Counsel for the defendant duly excepted to this instruction and requested the court to charge that if the mother and driver were both negligent, the ■defendant was entitled to a verdict, and excepted to the refusal of the court to so charge. The court then remarked: “ They might find the child was not guilty of negligence, and in that case- the plaintiff would be entitled to recover irrespective of the negligence ■of the mother,” and to this the defendant also excepted. The proposition of law involved in the first of these instructions is correct as an abstract proposition. (McGarry v. Loomis, 63 N. Y. 105 ; Cumming v. Brooklyn City R. R. Co., 104 id. 669 ; Lafferty v. Third Avenue R. R. Co., 85 App. Div. 592 ; affd., 176 N. Y. 594.) We are of opinion, however, that this rule of law-was not applicable to the facts of the case at bar. The theory of that rule is that where the child if he had been an adult would be free from contributory negligence, or, in other words, if the child neither did nor omitted to do anything that contributed to the injuries, then the negligence of the •mother is immaterial for it could not be said to be a proximate cause of the accident, which in such- case would be due solely to the negligence of the defendant. Here, however, if the child had been an adult she would have been chargeable with contributory negligence as matter of law.

The second instruction excepted to was also erroneous and misleading. It indicated that the jury were to consider whether the child was negligent. This was not a subject for the consideration of the jury. The child being non sui. juris could not be chargeable with personal negligence. If it appeared that she had been run down under circumstances that would permit a recovery by an adult then her acts or omissions did not contribute to the accident as a proximate cause and they became immaterial, as does also any negligence on the part of the absent mother. (Lafferty v. Third Avenue R. R. Co., supra.) But, as has been seen, this was not a case for the application of that rule. It follows, therefore, that these exceptions were well taken, and they require a reversal of the judgment.

The judgment and order should he reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  