
    Henry M. Birkett, as administrator of Jennie W. Birkett, deceased, Resp’t, v. The Knickerbocker Ice Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    1. Negligence—Stbeets—Dbiveb of vehicles—Cabe bequibed.
    Where a child four and a half years of age was crossing a street at a cross-walk, and upon being called to by other children who noticed the approach of an ice wagon, hesitated, apparently bewildered, and was struck down by the horses drawing the wagon. Held, that in a populous city, one driving a vehicle must always be on the alert to discover foot passenge.s, and especially to look out for children. He is bound to anticipate that pedestrians might be at the crossing, and to take reasonable care not to injure them. Question of negligence of driver proper one for the jury.
    3. Same—When imputed to one nonsui juris.
    
    The child being non sui juris, could not be charged with personal negligence, though the negligence of the parent in. suffering her to be in a place of danger would be imputed to her. To have such negligence defeat the action, the child itself must be guilty of what would be negligence in an older person. Both these elements must exist. «.
    3. Same—Cabe of child bequibed.
    It is not negligent for a mother to let a child four and a half years old go out to play in summer on the street with a child six years old. Its remaining half an hour would not warn the mother of its being in danger.
    4, Same—Measuke of damages.
    In an action based on the statute, for the death of the child, the dam- - ages should not be restricted to loss of services during minority. The measure would be the whole pecuniary loss occasioned by her death, and would not be affected by the fact of the infancy of deceased.
    Appeal from judgment in favor of plaintiff, and order denying a new trial.
    
      James Troy, for resp’t; Maclay & Forrest, for app’lt.
   Cullen, J.

This is an action for the death of a child four years of age, who was fatally injured by the horses drawing an ice cart of defendant.

The child was crossing the street at a cross-walk, and upon being called to by other children who noticed the approach of the ice wagon, hesitated, apparently bewildered, and was struck down by the horses drawing the wagon.

The question of the negligence of the driver was certainly properly submitted to the jury. The driver was bound to anticipate that pedestrians might be at the crossing, and to take reasonable care not to injure them. Murphy v. Orr, 96 N. Y., 14.

The evidence of plaintiff’s witnesses, if believed, tended to show the presence of the child at the crossing when the ice wagon was at a sufficient distance for the driver to have observed her and avoided striking her.

The most serious question is the contributory negligence of the deceased. Being non sui juris, she could not be charged with personal negligence, though the negligence of the parents in suffering her to be in a place of danger, would be imputed to her. To have such negligence defeat the action, the child itself must be guilty of what would be negligence in an older person. Both these elements must exist, and so the trial judge correctly charged. McGarry v. Loomis, 63 N. Y., 107. The exception to the charge in this respect was therefore not well taken. But a motion was made to dismiss the complaint at the close of the plaintiff’s case, and it is necessary to examine the evidence in these respects, to see if it was plain that, as a matter of law, negligence on the part of both parent and child existed.

The accident happened on an August afternoon: The mother let the child go out to play on the sidewalk in company with her brother, a child of some six years. Some half hour afterwards, while attempting to cross the street alone, the child was injured. We think it cannot be said, as a matter of law, that the mother was negligent in letting the child thus go out in the street. Though the child was assumed on both sides to be non sui juris, still at four and a half years it had some little intelligence; an intelligence which, though slight, is enough to save the great mass of city children of her age, whose sole place for air andrecreatian is the sidewalk, from peril or injury.

The deceased was not allowed to go unattended; the brother, six years old, was sent with her. The child had not remained out so long that care on the mother’s part would necessarily have warned her that the child was alone.

The case of Hartfield v. Roper, (21, Wend., 615), differs much from this. There the child was but two years old, sitting in the traveled part of a country highway. To leave a child of that age alone was plainly folly or worse. • As said by the court, the driver had no reason to anticipate such a situation. But in a populous city, one driving a vehicle must always be on the alert to discover foot passengers, and especially to look out for children. The case is a close one, but on the whole, we think the question was properly left to the jury as a question of fact, and that the motion for a non suit was rightly denied.

It was not error for the court to refuse to charge the jury that the damages should be restricted to the loss of service during minority. This action is not for loss of service. Such an action could not be maintained where death ensued. This action is based on the statute. If the deceased had been of full age, so that the plaintiff had no right to her service, this action would he, and the measure of damage would be the whole pecuniary loss occasioned by her death. That the deceased was an infant does not change the measure of damages.

The judgment and order denying a new trial should be affirmed with costs.

Barnard, P. J., and Dykeman, J., concur.  