
    CRONJAEGER v. CITY & SUBURBAN HOMES CO.
    (Supreme Court, Appellate Term.
    November 12, 1909.)
    Municipal Corporations (§ 822*) i—Negligent Use of Streets—Infants— Instructions.
    In an action for injuries to an Infant, caused by a defective railing over an excavation in front of defendant's premises, a charge to find for plaintiff if the mother sent the child into the street in the care of a guardian, and if defendant maintained the defective railing in a negligent manner, was erroneous, as taking the question of contributory negligence from the jury.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1761; Dec. Dig. § 822:*]
    Appeal from Municipal Court, Borough of Manhattan, Sixth District.
    Action by Julius Cronjaeger, an infant, by his .guardian ad litem, against the City & Suburban Homes Company. From a judgment for plaintiff, defendant appealed.
    Reversed, and new trial ordered. ,
    *For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexe*
    
      Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.
    Eidlitz & Hulse, for appellant.
    David & Dworsky, for respondent.
   PER CURIAM.

The defendant is charged with maintaining a defective railing over an excavation in front of its premises, by reason of which plaintiff, an infant of four years and some months, was injured. At the very end of the charge, and just before the case was submitted to the jury, the court charged the plaintiff’s request, as follows:

“If the jury find that the mother of the plaintiff sent her child out into the street in the care and custody of a guardian, and if they further find that defendant maintained this defective railing in a negligent manner, then they must find for the plaintiff.”

This charge took the question of contributory negligence from the jury, and practically nullified the previous portions of the charge as to that issue.

There are other errors, which need not here be discussed, as a new trial should be granted for the prejudicial error above stated.

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