
    Thomas Williams, Adm’r, Resp’t, v. Rebecca Gardiner, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Negligence—Contiubutoky.
    Plaintiff was a tenant of defendant’s premises. His child, aged about five years, was killed by falling down a stairway, which was the only means of access to the back yard. The child was usually placed in the care of her sister, who was nine years old, and who came up the stairway with her, but left her when within two steps of the top for a moment, and on her return found the deceased in the cellar. Defendant’s counsel requested the court to charge that if the mother selected an elder child to accompany the deceased on the occasion in question, and the one so selected was negligent in caring for the deceased, plaintiff could not recover. Held, that the request was improperly refused.
    Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying motion for a new trial.
    
      Artemus H. Holmes, for app’lt; John D. Townsend, for resp’t.
   Brady, J.

This action was brought under the statute to recover damages for negligently causing the death of Lillie Williams, the plaintiff’s intestate and daughter, aged four years and' nine months. ^

The defendant had a life interest in and possession of premises in Harlem. The building was three stories in height, the lower floor being rented for business purposes. The only public means of access to the privy was by going out through a door in the second, floor to a shed, which was sixteen feet or more from the yard, and from the shed to the yard by a stairway.

On the 26th of January, 1889, the plaintiff’s intestate, while returning from the privy in company with her sister, who was nine years old, fell, it would seem, from the stairs mentioned into the cellar and fractured her skull, death ensuing within a day or two thereafter.

Upon the trial it appeared, among other things, from the testimony of the mother, that she had forbidden the children going into the yard, and for the purpose of securing obedience caused them to go through her room, and tried to keep the door locked to prevent their going out, her husband being an invalid and apparently incapable of looking after them. She said, also: “ I placed the little one in charge of the other at all times; they were always together; she always looked after the little one.” “ The other,” so-called, was the daughter, Lottie Sinclair, a bright and intelligent child, apparently, who. said: Before the accident I and my sister went down into the back yard, and then came up the steps ; she was behind me, and I went into 'the house. ” And, further: When I saw her two steps from the top (that is, when they were returning) I went into the house and then out again; I did not find her two steps from the topI saw her down the cellar; when I went in I came right back; she came up the stairs, and was behind me, and when I got to the top I saw her two steps from the topshowing, it would seem, that the child was in her charge, but was abandoned for the moment when within two steps of the top of the stairway, whence she fell and was killed.

Assuming, which may be done for the purpose of the appeal, that all the legal propositions which the facts and circumstances invoked were properly stated to the jury except the one to which attention is about to be called, the omission to grant that request, embracing as it did the proposition suggested, seems to be fatal to the maintenance of the judgment

The child was not in the immediate care of either of her parents at the time the accident occurred, but was in the custody of her sister, to whose care she was generally committed by the mother, as we have already seen.

After the delivery of the charge, which was comprehensive and. in which the doctrine of negligence to be applied to the intestate as well as to the parents under the circumstances disclosed was dwelt upon elaborately, the defendant’s counsel asked the judge to charge that if the mother selected an elder child to accompany the deceased upon the occasion in question,-and the one so selected was negligent in caring for the deceased, the plaintiff could not recover. It will be remembered that the mother testified she placed the intestate in charge of the other one (that is, Lottie Sinclair) at all times; they were always together; she always looked out for the little one. The object of this request to charge was no doubt to invoke for the defendant’s benefit the rule, seemingly well established, that if in a case of this kind the parent or the guardian or person in whose custody the child is placed is guilty of negligence, there can be no recovery. The person selected as guardian or custodian becomes the alter ego of the parent, and upon the one so chosen devolves the proper care and management of the child.

A kindred question was involved in the case of Ihl v. The Fortysecond Street R. R. Co., 47 N. Y., 317, in which a child of three years and two months crossed the avenue upon which the defendant operated its railroad, in charge of a sister nine a half years of age. The court there said : The defendant relies wholly upon the proposition that the sending of the child across the avenue and practically unattended except by another child so young as the attendant in this case was proved to be, was negligence per se and further, that the refusal so to charge was not error, but that it was properly left to the jury to say whether it was negligence to permit the little daughter between nine and ten years of age to take the little boy to the drug store in the way she started to do it; that the competency of the little child to act as attendant of the deceased was matter of judgment, and there was no positive rule by which it could be determined.

The doctrine of that case, as declared by the case of Kunz v. City of Troy, 104 N. Y., 351; 5 N. Y. State Rep., 642, is that tnere must be concurrent negligence on the part of the parents or guardians, the court saying: “In the absence of negligence-on the part of the parents or guardian, the doctrine of contributory negligence has no application.” The law imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such care and the infant is thereby brought into danger, and the result is injury from the negligent act of another, their negligence is deemed the negligence of the infant

Under these circumstances the refusal to charge as requested was erroneous. The intestate was evidently placed in charge of her sister, and the care taken by the latter of the former was a subject of inquiry, and should have been submitted to the jury as requested.

For these reasons the judgment must be reversed and a new trial ordered.

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

Van Brunt, P. J., and Daniels, J., concur.  