
    COURT OR APPEALS.
    Daniel Honegsberger agt. The Second Avenue Railroad Company.
    It is a well settled rule, by repeated authorities, that in actions for negligence, the person bringing the action must be free from negligence contributing to the injury.
    
    And this rule is as applicable to a child six or seven years cf age, who may bring the action, as to an adult plaintiff. (This point has been settled law for over twenty-five years, by the case of Sartfield agt. Soper, 21 Wend. 615, Cowen, J., and followed in subsequent cases,)
    An infant is not sui juris, he belongs to another, to whom discretion in the care of his person is exclusively confided.
    If the infant cannot recover in such a case, the right of action by his'father, for ) the injury to the infant, is no greater than that of the infant would be, for he claims through the infant, and upon the theory that the infant is free from blame.
    As to the degree of care which would be required of the infant to exempt himl from the imputation of negligence, there is but one rule on the subject, as the \ law is held hi this state, and applies to all persons without exception, and J makes no discrimination on account of age. It is that degree of care which a: person of ordinary prudence would exercise in the situation supposed.
    An infant of tender years, incapable of exercising requisite discretion, is not to be permitted to occupy the highway, for the purpose of entitling himself to an action for an injury, except upon the condition of being subjected to the consequences of negligence attached to persons in general.
    And this rule applies, although the parents of the infant may not be considered culpable in sending their child of six or seven years of age to school alone, through the streets of a city.
    If the infant in fact becomes guilty of negligence, and in .consequence thereof ¡ suffers personal injury, he is not to take advantage of his own wrong, and! thereby entitle himself to an action of redress.
    
      September Term, 1864.
    Appeal from a judgment of the court of common pleas of the city of Hew York, affirming a judgment for plaintiff obtained in that court. (Reported 1 Daly, 89.)
    The plaintiff sues to recover damages sustained by him in consequence of injuries inflicted on his infant son by the negligence of one of the defendants’ servants.
    The defendants deny the plaintiff’s allegations, and say that the injuries were occasioned by the carelessness of the boy.
    On the trial the following facts were shown : Solomon, the plaintiff’s son, on the 22d of May, 1857, was attending the public school situated on the east side of First avenue, a little north of Ninth street. He lived in Ninth street, on the west side of the avenue. At three P. M., just as the scholars were let out of school, and the boys, including plaintiff’s son, were chasing each other, and tapping each other with their books, one of the defendants’ cars was being driven up town by one of their drivers.
    A person had just before that got on the platform in front, and was standing near the driver, and the driver was conversing with him.- The driver’s face was turned towards this passenger, and his body was turned a little towards him. At this point of time, the boy was crossing the avenue on his way home. He was running across the avenue from east to west, according to the plaintiff’s evidence. He fell on the track. The horses at the time he fell were some distance— half the car’s length from him. The driver did not see the boy until his attention was called to him, and did not see him as soon as the passenger, who was on the platform with him. When his attention was called to the boy, he did not manifest sufficient energy or impulse.
    The car might have been stopped before reaching the boy. It was not stopped until it had passed completely over the boy, and a length and a half beyond. The car passed over the boy’s arm and crushed it. It had to be amputated above the elbow joint. The age of the boy is not in proof, though the counsel for defendants assumed that he was only six years old. There was conflicting evidence.
    The jury rendered a verdict for $869.50 damages, being the amount of outlay occasioned to the plaintiff by the accident. According, to the defendant’s evidence, the boy fell against the flank of -one of the horses attached to the car, and the driver immediately applied the brake, and stopped ike car as soon as he could.
    The general question of negligence was left to the jury, under the charge of the presiding judge that it is necessary for the plaintiff to prove that the injury was produced by the negligence of the defendants ; by their exclusive negligence ; and that the boy’s negligence did not contribute to it. But the judge further charged, that in determining what would be negligence on the part of the boy, it is not to be understood that a child of the age of the boy is to be held to the same degree of caution, foresight and discretion, that would be exacted from an adult. If the child has arrived at an age in which its parents, in the exercise of a sound discretion, are justified in permitting him to go to school, alone and unattended; if they are chargeable with no negligence in suffering him to do so, the child, while in the public streets, is to be held only to the exercise of that caution and discretion, of which children of his age are presumed to be capable. If he does that, it is all the law can require. There maybe cases in which an adult in going through, or in crossing the public street, would be expected to exercise a degree of discretion and judgment in respect to the safety of his person, or to avoid accidents, which would not, to the same extent, be expected from a child, though he had arrived sufficiently at years of discretion, to justify his parents in allowing him to go into the public streets alone, especially in going to and from school.
    To this charge the defendants excepted.
    Andrew Boardman, for plaintiff.
    
    The plaintiff sues to recover damages sustained by him in consequence of injuries inflicted on his infant son, by the negligence of one of the defendants’ servants. The defendants deny the plaintiff’s allegations, and say that the injuries were occasioned by the carelessness of the boy. On the trial, the following facts were shown:
    Solomon, the plaintiff’s son, on the 22d of May, 1857, was attending the public school situated on the east side of the First avenue, a little north of Ninth street. He lived in Ninth street, on the west side of the avenue. At three P. M., just as the scholars were let out from school, one of the defendants’ cars was being driven up town by one of their drivers. A person had just before that got on the platform in front, and was standing near the driver, and the driver was conversing with him. The driver’s face was turned directly towards this passenger, and his body was turned a little towards him. At this point of time, the boy was crossing the avenue on his way home. He was running across the avenue from east to west. He stumbled on the track. The horses, at the time he fell, were some distance, at least half the car’s length from him, and notwithstanding the children were coming out of school in advance of the car, and that the car was on a descending grade, the driver was looking aside, instead of in front. He did not see the boy until his attention was called to him, and did not see him as soon as the passenger who was on the platform with him. When his attention was called to the boy, he did not manifest sufficient energy or impulse. The car might have been stopped before reaching the boy. It was not stopped until the car had passed completely over the boy, and a length and a half beyond. The car passed over the boy’s arm and crushed it. It had to be amputated above the elbow joint. The age of the boy is not in proof, though the counsel for the defendants assumed that he was only' six years of age.
    There was conflicting evidence, but these statements were testified to by respectable, intelligent and disinterested witnesses.
    The jury rendered a verdict for $869.50 damages, being the amount of outlay occasioned to the plaintiff by the accident.
    I. The question of negligence, both as to the defendants and as to the plaintiff’s son, was one to be determined by the consideration of many circumstances, and of conflicting testimony, and it was a question which the court was bound to submit to the jury, under proper instructions. (Bernhardt agt. The Rensselaer and Saratoga R. R. Co. 19 How. Pr. R. 199, affirmed in the court of appeals; Wilds agt. Hudson River R. R. Co. 33 Barb. S. C. R. 503; Mangam agt. Brooklyn City R. R. Co. 36 Barb. S. C. R. 203.)
    II. The defendants were bound to use the utmost care, diligence and foresight; and if, by the exercise of these, an accident from which injury has resulted might have been prevented, it is liable, unless such liability has been precluded by the conduct of the injured boy.
    HI. The question of negligence on the part of the injured boy, was properly left to the jury. The presiding judge charged the jury, that “ it is necessary for the plaintiff to prove that the injury was produced by the negligence of the defendants—by their exclusive negligence—and that the boy’s negligence did not contribute to it.” (Oldfield agt. The New York and Harlem Railroad Co. 3 E. D. Smith, p. 103 ; Id. 4 Kern. p. 310, and cases above cited.)
    
    IY. There is no error in ■ the subsequent instruction of the judge, that “ if the child has arrived at an age in which its parents, in the exercise of a sound discretion, are justified in permitting him to go to School alone and unattended ; if they are chargeable with no negligence in suffering him to do so, the child, while in the public streets, is to be held only to the exercise of that caution and discretion, of which children of his age are presumed to be capable.” That is to say, u the law will hold the child bound to the exercise of care and caution, to the extent of its capacity
    
    1. It is the policy of the state that children should attend public schoolsand the defendants are bound to exercise such care, diligence and foresight, as shall have reference to this policy. {Laws of 1851, chap. 386, § 35, p. 750 j Laws of 1853, chap. 185, p. 358.)
    2. When the law establishes schools for children, it indicates an obligation on the part of citizens tó give their children the opportunity of availing themselves of the means of instruction thus furnished. To hold that children may not go to and from school unattended, would be to render the law inoperative," as it is not within the power of the great majority of the people to furnish such attendance.
    3. To hold that a child which may be left to go to and from school unattended, without subjecting its parents to the charge of carelessness, shall be bound to exercise care and caution beyond the extent of its capacity, would be absurd ; and yet such would be the exact equivalent of the proposition that he is bound to exercise “ the same degree oí caution, foresight and discretion, that would be exacted from an adult.”
    Such a decision would be a free license for the reckless use of the valuable but dangerous means of conveyance of modem times, for it would be an easy and logical extension of the rule to decide, that in order to recover in such cases, a man must show, not that he used all the care and diligence of which Tie is capable, but all of which one of the utmost intelligence, coolness, intrepedity and presence of mind, is capable. The law does not so deal with human affairs. It applies to them practical sense, not perverse subtleties.
    Y. The judgment should be affirmed, with costs and dam-
    John K. Porter, for defendant.
    
    A street car of the defendants, drawn by horses, was passing at the usual rate of speed up the First avenue, in the city of New York, and when near Ninth street, the infant son of the plaintiff, who was playing in the street, chasing and being chased by other boys, suddenly ran against the side of one of the horses, and before the driver could stop the car, although he instantly applied the brake, the boy was thrown down and injured.
    I. Where the carelessness and imprudence of the person injured contributes to the injury, an action for damages cannot be sustained. (13 Barb. 8. 0. p. 9.)
    II. An action for negligence cannot be sustained, if the negligence of the plaintiff co-operated with the misconduct of the defendant or his agent, to produce the damages sustained. (13 Barb. S. G. p. 9 ; 21 Id.p. 339.)
    HI. The law makes no distinction in consequence of the age of the person injured, but holds all, of whatever age, to the same degree of care and foresight. (Hartfield agt. Roper, 21 Wend. 615; Brown agt. Maxwell, 6 Hill, 592; Kreig agt. Wells, 1 E. D. Smith, 74.)
    IY. The. learned judge erred in charging the jury that in determining what would or would not be negligence on the part of the boy, it is not to be understood that a child of the age of the boy is to be held to the same degree of caution, foresight and discretion, that would be exacted from an adult.
    Y. There should be a new trial granted.
   Hogeboom, J.

The charge of the judge, as construed in the light of the evidence, must be considered as applied to a child of some six or seven years of age. That was the age stated in the complaint, and not denied in the answer, and assumed in the defendants’ request to charge the jury, and there not controverted. So understood, and remember- ; ing also the fact that the father, and not the child, is the plaintiff in the action, I am of opinion that the charge was erroneous.

Even as applied to the child, if he had been plaintiff, I do not see how such a charge could be sustained, if we adhere to the case of Hartfield agt. Roper (21 Wend. 615), decided five and twenty years ago, and followed in subsequent cases. (See 5 Hill, 282; Brown agt. Maxwell, 6 Id. 592; Spencer agt. Utica R. R. Co. 5 Barb. 338 ; 27 Id. 228; Button agt. Hudson River R. R. Co. 18 N. Y. 251; Steves agt. Oswego and Syracuse R. R. Co. Id. 425 ; Munger agt. Tonawanda R. R. R. Co. 4 Comst. 359 ; 1 E. D. Smith, 74.)

In Hartfield agt. Roper, the infant himself, a child of about two years of age, was the plaintiff, and Justice Cowen, speaking of the rule that a negligent party cannot recover damages consequent upon a collision in. the highway, says : “ The application may be harsh when made to small children, as they are known to have no personal discretion. Common humanity is alive to their protection, but they are not, therefore, exempt from the legal rule when they bring an action for redress, and-there is no other way of enforcing it except by requiring due care at the hands of those to whom the law and the necessity of the case has delegated the exercise of discretion.

“ An infant is not sui juris; he belongs to_ another, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose, and in respect to third persons, his act must be deemed the act of the infant, his neglect the infant’s neglect.” It is plain in the nature of things, that if an infant insists upon a right of action, he must show a compliance with the conditions on which his right is to arise, and this is entirely irrespective of his age.

In Munger agt. Tonowanda R. R. Co. (4 Comst. 349), Judge Hublbut, in delivering the opinion of the. court, while speaking of the general rule, that in actions for negligence the person bringing the action must be free from negligence contributing to the injury, remarks as follows (page 359) : “ Lord Denman in Lynch agt. Nurdin (1 Ad. & Ellis, 29), allowed an exception in favor of the plaintiff, a child seven years old, who received an injury by getting into the defendant’s cart while it was carelessly left in the street. The decision has not, however, been followed in this state, but the negligence and imprudence of the parents or guardians, in allowing a child of tender years to be exposed to injury in the highway, has been held to furnish the same answer to an action by the child, as the negligence or other fault of an adult plaintiff would have done in a similar case.” (Hartfield agt. Roper, 21 Wend. 615; Brown agt. Maxwell, 6 Hill, 592.)

In Willetts agt. The Buffalo and Rochester R. R. Co. (14 Barb. 585, 592), the same rule was applied in the case of a lunatic, who being in company with his father on a railroad train, was temporarily left by the latter, who stepped off the car to procure refreshments, and during his absence, the lunatic being applied to by the conductor for his fare, refused to pay the Same, and thereupon was ejected from the car, and was run over by another train of cars and killed.

If, therefore, the infant had been plaintiff, and had been guilty of negligence, he could not recover under the law as it is administered in this state; and if he could not recover, this right of action is no greater than that of the infant would be, for he claims through the infant, and upon the theory that the infant is free from blame. There may be possibly some reason for saying, that as he adopts the act of the infant, and seeks to derive benefit from it, he must be considered as in the place of the infant, and responsible for negligence in the same way as if he had been the party injured. But it is not necessary to decide that question.

The point then to' be determined is, what would be the degree of care which would be required of the infant, to exempt him from the imputation of negligence? I know of but one rule on the subject as the law is held with us, and I thick it applies to all persons without exception, and makes no discrimination on account of age.

It is that degree of care which a person of ordinary prudence would exercise in the situation supposed. There is no other safe rule. Ho other rule would protect the community. An infant of tender years, incapable of exercising requisite discretion, is not to be permitted to occupy the highway, for the purpose of entitling himself to an action for an injury, except upon the condition of being subjected to the consequences of negligence attached to persons in general. Otherwise, the tenderer the age, and the less the discretion, the more perfect and frequent the cause of action, because more easily sustained and oftener occurring. Such a rule is not capable of safe, practical enforcement.

I think this position is not answered b.y saying that the charge assumes that the jury should find the plaintiff free from negligence in sending the boy to school unprotected.

The, defendants asked the court to charge that such act of the father in sending so young a child to school through so crowded a thoroughfare as the streets of Hew York, without a protector, would be in itself negligence. The court refused so to charge, and the defendants excepted. But assuming that such conduct might not be subject to the imputation of negligence; that is, that a prudent person might send his boy of six years old to school alone, through the streets of Héw York, it does not follow that this particular act is free from negligence, nor such as would be likely to be practiced, even by boys of that age; nor does it follow that even for purposes of education, such conduct on the part of the father should not be discouraged; that it is not subject to the condition that if the infant in fact becomes guilty of negligence, and in consequence thereof suffers a personal injury, he is not to take advantage of his own wrong, and thereby entitle himself to an action for redress. The charge must be read, I think, as speaking of negligence in a general way, in reference to a general practice of sending children of such an age to school, as not censurable, and not as applied to the actual circumstances of the present case.

I think the judgment should be reversed and a new trial granted, with costs to abide the event.  