
    Norah Hennessey, an Infant, by James Hennessey, her Guardian ad Litem, Respondent, v. The Brooklyn City Railroad Company, Appellant.
    
      Jfegligenee—the negligence of a father, driving ah infant child held in its mothers a/rms, not imputed to the child.
    
    In an action brought to.recover damages resulting from injuries caused by the alleged- negligence of the defendant, it appeared that the plaintiff was twenty-one months old at the time of the'accident, and was being held in the lap of her "mother, who was sitting in a wagon, driven by the plaintiff’s father, which ■came into a collision with a street car operated by the defendant. The circumstances were such as would.have justified a finding that the father had ■ been guilty of negligence in his manner of driving the wagon.
    Upon the trial of the action the judge charged the jury that such negligence of the father of the plaintiff would not defeat her right to recover, provided the injury was occasioned by the.negligence of the defendant.
    
      Held, that the charge was correct;
    That the child,- while in law subject to the paramount guardianship of the father, was in the immediate custody of the mother, who held it in her arms, .and that her negligence only, and not that of the father, was to he imputed to the child;
    That the negligence of a parent, when not acting in that capacity, was not chargeable to the child, even though it tended to expose the child to injury from other persons.
    
      Appeal by the defendant, The Brooklyn City 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 Kings on the 12th day of December, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 6th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      Samuel D. Morris, for the appellant.
    
      James C. Church, for the respondent.
   Cullen, J.:

The plaintiff' in this action is an infant, who was about twenty-one months old at the time of the accident which gave rise to the suit. The accident occurred on Christmas Day, 1891, and was due to, a collision between a phaeton driven by the father of the plaintiff and a car of the defendant operated by steam, on Third avenue, in the city of Brooklyn. The plaintiff’s father, who drove the wagon, was accompanied by his wife, and at the time of the- collision the plaintiff was held by the mother in her lap. It is not necessary to recite the circumstances of the collision, or to say more than- that, the evidence of the defendant was such that the jury might have found, as á matter of fact, that the plaintiff’s father was negligent in driving the wagon and that such negligence contributed to the accident. The judge at Circuit charged the jury-that' such negligence on the part of the father would not 'defeat the right of the plaintiff to recover, provided the injury was occasioned by the negligence of the defendant. To this charge the defendant excepted, and that exception presents the only question to- be determined on this appeal.

The question presented, whether the negligence of the driver of the vehicle, he being the father of the plaintiff, is tó be attributed to the plaintiff, is by no means easy of solution. Whatever, criticisms may have been passed by text writers upon the doctrine of imputed negligence in the case of a person non sui juris as declared by the courts of this State, the doctrine is too well established in our jurisprudence " to be now questioned. But the great difficulty is-- in its application to the present case. That the negligence of the father, who drove the vehicle, is not imputable to his wife, the mother of the plaintiff, and in whose arms she was being held at the time of the accident, is both clear on authority (Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y. 199), and is conclusively determined by her recovery in her own action for injuries from this accident. (Hennessy v. Brooklyn City R. R. Co., 73 Hun, 569; affd., 147 N. Y. 721.) The mind naturally shrinks from accepting the proposition that though the negligence of the driver is not to be attributed to the mother, yet it is to be attributed to the baby she carried in her arms. This proposition, too, if correct, must pi’oceed wholly from the relation the child bore to the driver, for if the driver had not been her father or custodian she would not have been responsible for his negligence. The general rule, well settled by authority, is that in the case of an infant non suijuris, the negligence of his custodians, whether parents or persons to whose care the child has been intrusted, is to be imputed to the child. (Hartfield v. Roper, 21 Wend. 615; Mangam v. Brooklyn R. R. Co., 38 N. Y. 456.) But it is equally .settled law that to make this rule applicable the infant must have done something which in the case of an adult would, have constituted'negligence. (Ihl v. Forty-second Street, etc., R. R. Co., 47 N. Y. 317; Cumming v. Brooklyn City R. R. Co., 104 id. 669.)

Now, in this case had the plaintiff been an adxilt, negligence on her part would have consisted, not in riding in the • vehicle, nor in misconduct on the part of the driver, but in failing to properly take care of herself, i. e., either a failure to call the attention of the driver to the presence of the danger, to jump out of the vehicle, or to do whatever the jury might find an ordinarily prudent person would have done under the circumstances. The difficulty in this case lies just here; .whether the case be one of an infant non suijuris, or of an adult, a person riding in a vehicle driven by another necessarily puts himself, to a certain extent, under the control of the driver. If the driver will" drive into danger, the only thing the person-riding can do is, by remonstrance or force, to prevent the driver continuing in his course, or to alight if he can from the vehicle. In the present case, the control the father had of the infant Was of a two-fold character: . First, as parent, the right to direct the management and action of the child; and, second, as driver of the vehicle, the physical power over those riding with him in the vehicle of the character already indicated. Now, assuming the father was negligent in driving the vehicle, is that to he considered as negligence in his duty as parent or custodian of the child, or is his negligence to be considered as in a subject-matter apart from parental duty and his relation to the child, or are the two so interwoven as to be incapable of separation ?, And if the negligence was not in parental custody or duty, is such negligence a bar to plaintiff’s recovery? In Shearman & Redfield on Negligence it is stated (§ 81): “ Under the {Ne\y York rule,’ therefore, the negligence of a parent or guardian when not acting in that capacity is not chargeable to his child even though it tends to expose the child to injury from other persons.’’ The authority cited to sustain this proposition by the learned authors (Lannen v. Albany Gas Light Co., 46 Barb. 264 ; affd., 44 N. Y. 459) does not proceed on this principle, although the case involved such a point. Nevertheless, I think it clear that the ^proposition stated must be correct. While it may be that “ illustration is not argument,” it is oftentimes a most convenient substitute for it, and the whole argument of the distinguished judges of the Court of Appeals who wrote the opinions in the case last cited is based on illustration. Suppose the mother and baby had been riding as passengers in a railroad train of which the father was the engineer, and that 6y the negligence of the father, as engineer, an accident had occurred to the train and the child had been injured, in such a case could the negligence of the father be held to prevent a recovery by the child against the railroad company ? Would it not be clear that the conduct of the father was in a service so far apart from that proceeding from the parental relation as to have no effect on the rights of the injured child ? In this case the child, while in law subject to the paramount guardianship of the father, was in the immediate custody of the mother. Its extreme youth rendered it necessary that, except while in the house, some one must have not merely legal control, but almost actual personal possession of the child. Here that person was the mother, who held the child in her arms. It should, for the purposes of this action, he deemed as in her immediate custody, not as in the custody of both parents, or of the father alone. The attention or care that at the time was to he bestowed upon it, from its helpless condition because it was an infant and not an adult, was to proceed from the mother. The care that the father was to exercise, he was to exercise whether the plaintiff was non sui juris or an adult, whether it was his child or a stranger’s. The mother's negligence was, therefore, properly to be attributed to the child, but not that of the father.

The. views here expressed are not in conflict with the decided cases. In Doran v. City of Troy (22 Wkly. Dig. 230; affd. without opinion, 104 N. Y. 684) the plaintiff was four years old at the time of the injury and was placed by its father, who was driving, upon the top of a one-horse spring market wagon. In driving over a rough part of the road the child was jolted off the wagon and fell under the wheel. The father was aware of the condition of the road. .It was there held that the father was guilty of contributory negligence in. failing to hold the child or otherwise protect it or caution it to hold fast to him, and that the father’s negligence was to be imputed to the plaintiff. In that case it will be seen that the negligence of the driver was strictly in the discharge of his duty as custodian of the child.

.In Morrison v. Eric Railway Co. (56 N. Y. 302) the plaintiff, a young girl twelve years old, a passenger on defendant’s train, was taken by her father under his arm, and the father then attempted to alight from the train while it was in motion. It was held that the plaintiff could not recover. It was said: “ It is certain, that but for the attempt of the plaintiff’s father then to get down from out the car, she would not have been injured as she was. His act, which was her act, in thus attempting, did contribute to the accident.” ' There is no discussion of the principle on which the negligence of the father was to be attributed to the child, she being twelve years old. But the decision must have proceeded either on the .theory that the plaintiff,’ despite her age, was still to be treated as non sui juris, oi* that she assented to her father’s act. If the former is the theory of the decision, then the negligence was in the relation of custodian ; for, had the plaintiff been an adult, she would have got off unaided. If it was considered that, the plaintiff assented to the father’s act, then, of course, the case has no appli- • cation to that before us.

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

All concurred, except Brown, P. J., not sitting.

Judgment and order unanimously affirmed, With costs.  