
    Henry M. Birkett, as Adm’r, etc., of Jennie W. Birkett, Resp’t., v. The Knickerbocker Ice Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Negligence—Not negligent as a matter op law to allow child over four years old to play on sidewalk unattended.
    It cannot be said as a matter of law' that ordinary prudence forbids that a bright child four and one-half years old, properly instructed and cautioned, should go unattended on to a sidewalk for diversion.
    2. Same—When a question for the jury.
    The intestate, a girl four and one-half years old, resided with her • parents in a thickly populated neighborhood. There was no inclosed space around the house for children to play. The children of intestate’s parents were permitted to play upon the sidewalk near the house About four o’clock p. m. on the day of the accident, the intestate left the house with her brother, about six years old, to play upon the sidewalk with other children. She had permission only to play upon the sidewalk and was never allowed to cross the street. She was a healthy, sharp, bright, intellignt child. She had been out but a short time when her brother left her, and while she was attempting to cross the street and was on the street-crossing, she received the fatal injuries through defendant’s negligence. Held, that it was not, as a matter of law, under the circumstances, negligence for the parents to permit the. intestate to go to the sidewalk to play. Whether it was or not was a question for the jury.
    3. Same—Not unlawful for a child to be in the street.
    It was not unlawful for the child to be in the street, nor even for her to play upon the sidewalk.
    4. Same—Driver of wagon—When question for jury.
    The defendant’s wagon was heavily loaded and was being driven upon a descending grade. There was nothing to distract the attention of -the driver. Held, that the question of the driver’s negligence was properly submitted to the jury.t|
    5. Measure of damages—Plaintiff not confined to nominal damages.
    There was proof of the circumstances of the plaintiff, who was the father-of the intestate, and his family and the condition, character and sex of the child. Held, that it would have been error to instruct the jury that nominal damages only could be recovered.
    6. Same—Compensation not confined to minority—How estimated.
    In estimating the compensation to be made for the death of the child, the jury were not bound to confine their consideration to her minority. In estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable or even possible benefits which might result to them from her life, modified, as in their estimation they should be, by all the chances of failure and misfortune.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury, rendered at the Kings county circuit, and from an order denying a motion for a new trial. The facts will be found in the opinion.
    
      Albert Stickney, for app’lt; James Troy, for resp’t.
    
      
       Affirming 3 N. Y. State Rep., 133.
    
   Earl, J.

plaintiff claims that the intestate came to her death from the carelessness of the defendant, and he has brought this action to recover “compensation for the pecuniary injuries ” resulting from the death to her next of kin.

The intestate was plaintiff’s daughter, and at the time of her death was four and one-half years old. The horses attached to one of defendant’s ice wagons were driven against her at a street crossing, where Franklin and Java streets in the city of Brooklyn intersect, and she was thus fatally injured.

If the intestate had been an adult, we think the evidence would have justified the claim of the defendant that her own negligence contributed to the injury. But she was non sui juris, and personal negligence could not be imputed to her. It is, however, contended that she was so young that her parents were guilty of negligence in permitting her to go into the streets unattended.

The intestate resided with her parents in a thickly populated neighborhood, and there was no enclosed space around the house for children to play, and plaintiff’s children were permitted to play upon the sidewalk near his house.

On the 26th day of August, 1884, about four o’clock p. m., the intestate left the house with her brother, about six years old, to play upon the sidewalk with other children. She had permission only to play upon the sidewalk, and was never allowed to cross the street. She was a healthy, sharp, bright, intelligent child. She had been out but a short time when her brother left her, and while she was attempting to cross the street she received the fatal injuries.

It was not unlawful for the child to be in the street, nor even for her to play upon the sidewalk. It cannot be said that it was, as matter of law, under the circumstances proved, negligence for the parents to permit her to go on to the sidewalk to play, and whether it was or not was a question for the determination of the jury. Oldfield v. The N. Y. and Harlem R. R. Co., 14 N. Y., 310; Ihl v. Forty-second St., etc., R. R. Co., 47 id., 317; McGarry v. Loomis, 63 id., 104.

Hundreds of young children are permitted with general safety, and must be permitted in cities to amuse themselves upon the sidewalks, and they cannot always be attended by persons of discretion. The highest prudence would doubtless require that they should be so guarded, but it cannot be said, as matter of law, that ordinary prudence forbids that a bright child four and one-half years old, properly instructed and cautioned, should go unattended on to a sidewalk for diversion. ■

We are, also, of opinion that there was no error in submitting the question of the negligence of the defendant’s driver to the jury. His wagon was heavily loaded and he was driving upon a descending grade. There was apparently nothing to distract his attention, and it was his duty to be vigilant to see pedestrians in the street and particularly at street crossings, so as not to injure them. While we do not think this branch of the plaintiff’s case is free from doubt, we are unable to say that the jury could not properly find that if the driver had been sufficiently vigilant and careful, he would have seen the child in time to avoid injuring her. Murphy v. Orr, 96 N. Y., 14; Moebus v. Herman, 108 id., 349; 13 N. Y. State Rep., 641.

The trial judge did not err in refusing to rule upon the request of defendant’s counsel that the plaintiff was entitled to nominal damages only. The rule of damages in such case is a difficult one to apply. The “pecuniary injuries,” for which recovery only can be had are always difficult of precise proof, uncertain and problematical, and what should be a proper compensation for them must always, upon such proof as can be made, be left to the judgment of the jury. That judgment is not an uncontrollable one, but is subject, if abused or not properly exercised, to-be reviewed and modified in the court of original jurisdiction. Here there was proof of the circumstances of the plaintiff and his family, and the condition, character and sex of the child, and the authorities in this state would not justify a ruling that nominal damages only could be recovered. Ihl v. Forty-second St. etc., R. R. Co. (supra); Houghkirk v. President, etc., D. and H. Canal Co. 92 N. Y., 219.

The jury were not bound in estimating the compensation to be made for the death of the child to confine their considerations to her minority. It is true that the plaintiff as father could command her services only during her minority. But in certain contingencies she might after her majority owe him the duty of support which could by legal proceedings be enforced, and after that event she might in many ways be of great pecuniary benefit to him.

In estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable or even possible benefits which might result to them from her life, modified, as in their estimation they should be, by all the chances of failure and misfortune. There is no rule but their own good sense for their guidance, and they were not in this case bound to assume that no pecuniary benefits would come to the next of kin from this child after her majority.

Therefore, finding no error in this record, the judgment should be affirmed, with costs.

All concur.  