
    Lewis Wabnich, as Administrator, etc., of Rosa Wabnich, Deceased, Respondent, v. The Dry Dock, East Broadway and Battery Railroad Company, Appellant.
    First Department,
    March 23, 1906.
    Negligence— child of Eve years of age run over by street car — error to refuse to submit the question of contributory negligence of child or its parents to the jury.
    The plaintiff’s intestate, a child Eve years of age' was run over and 'killed'by defendant’s street car. In an action to recover for the'death of said child, the court charged : “If you find that the accident occurred through the;negligent ,act of the driver, that' the little, girl lost,her life as the result.of the accident, then you will take up the question of the compensation which ‘the'plaintiff shall receive.” The court refused to put the questions of the contributory negligence of the child if su§ juris to the jury, or the contributory negligence of her parents in permitting the child to be upon the street unattended if non 'mi juris.
    
      Held, reversible error. A bright child five years of age allowed by its parents to play in the street is not as a matter of law relieved from the obligation of. exercising any care in relation to vehicles properly upon said street. When a child is struck while running in front of a car, the question of its parents’ contributory negligence in allowing the child to be unattended on the street cannot -be taken 'from the jury. . -
    
      Appeal by the defendant, The Dry Dock, East Broadway and Battery Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the" county of Hew York on the 17th day of February, 1905, upon the verdict of a jury .for $3,000, and also from an order entered in said clerk’s office on the 20th day of March, 1905, denying the defendant’s"motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      H. B. Davis, for the respondent.
   Ingraham, J.:

The plaintiff’s intestate was a child five years and two months old, large and bright for her age. She was run over by one of the cars on the defendant’s road and. received the injuries which resulted in her death, for which her father as her administrator brings this, action. The jury found a verdict for the plaintiff, from which the defendant appeals. The trial judge charged the jury: “If you find that the accident occurred through the negligent act, of the driver, that the little girl lost her life as the result of the accident, then you will take up the question of the compensation, which the plaintiff' shall receive.” There was nothing said about contributory negligence either of the child, or her parents, if the child was nan sui juris. The liability of the defendant was made to depend solely upon the question of the negligence of the defendant.

The. counsel for the defendant submitted to the court several requests to charge, "which were denied, and to which the defendant excepted. He asked the court to charge: “Second. If you find the plaintiff is non sui juris, (were) her parents or custodians free from all. contributory negligence in permitting the child to be in" the street unattended at the time 'and place in question ? Third. If you find the infant plaintiff was sui juris, did it exercise the ordinary care of a reasonably prudent child of similar age in the same situation? Fourth. "Was the defendant company "guilty of any negligence contributing to the accident? Fifth. If .you answer either the second, third or fourth questions in the negative, your verdict must be in favor of the defendant. Sixth. If you answer all three questions in the negative, your verdict must be in-favor,of the defendant.” After .exceptions to these refusals-to charge had-' been taken counsel for the defendant said:. Does your Honor submit this case to "the jury on the theory that the child was s'ui juris f ” To which the court replied':. “ I have submitted tlie case to the jury upon what I have, said in my charge. I have stated to the jury that if this child was in the street and on this track - far enough from the horses,. so that the driver. had ample time to. have stopped the- horses if he had been observing what was going, on before him, that is evidence from which the jury may find that the defendant is liable, no matter how the child got there.” Counsel for the defendant then said : I except to that portion of the charge.” Subsequently, in answer to counsel for the plaintiff,, the court again stated: I have not submitted the question whether the child was or was not sui juris, because I do - not think it has any bearing upon'the case at alk”

The court thus took entirely from the jury any consideration of the contributory negligence of the child.or of her parents in allowing her. to go unattended on- the street. This was error which requires- a reversal of the judgment. A bright child of five years allowed by its parents to .play in the public street is not as a matter of law absolutely relieved from the obligation of exercising while in the street, any care in relation to the vehicles properly there. (Costello v. Third Ave. R. R. Co., 161 N. Y. 317; Adams v. Nassau Electric R. R. Co., 41 App. Div. 334; West v. Met. St. R. Co., 105 id. 373; Buscher v. N. Y. Transportation Co., 106 id. 493; Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362.) Assuming that upon the evidence there was a question for the jury as, to the negligence of the defendant, the defendant was entitled to have the- jury-instructed that the plaintiffs, intestate While in the street was bound to exercise the care- that they found that a child of her age and condition could be expected to exercise under thé circumstances. All of the witnesses testified that the child was struck while attempting to cross the track in front of an approaching-car. In such a case the trial judge cannot, take from the consideration of the jury the question as to whether the act of the child in running in front of the car or the act of the parents-in allowing the child to be-unattended in the street was or was not negligence.-

For this error the judgment- and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, P. J., Patterson and Clarke, JJ., concurred; Laughlin, J., concurred in result.

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