
    (Superior Court of Cincinnati. General Term.)
    CITY OF CINCINNATI v. LAWRENCE GREGORY.
    
      Contributory negligence of a father — In such case naught to recover for injury to child
    
   SMITH, J.

This was an action below by the defendant in error against the city of Cincinnati to recover from the latter the amount expended by him in the care and nursing of his infant child, Bertha, who was injured as alleged, by the negligence of the city in failing to Keep in repair the iron fence which ran ran along the intersection of Third and Martin streets in this city, by reason of which negligence said child fell through the fence and down a distance of some SO feet and was seriously hurt. In special term a verdict was rendered against the city. It appears from the evidence that one or more of the iron palings in the fence were out and that the child having been permitted by the plaintiff, its fathor, to be on the sidewalk unattended, was attracted to the opening as a place for playing by swinging r.i'd that while swinging its grasp becoming some reason relaxed it fell through the opening and was injured.

It also appears from the evidence that the opening was but a short distance from where the plaintiff lived ; that he knew it was a dangerous place and had^ driven children away from it; that he lived in the third story of a house on Third Street near the opening; and that shortly before the accident he sent this child, at that time between three and four years of age, unattended, to an adjoining store to buy candy, and that while on this errand the child wandered off to this perilous location and was injured. It must be remembered that this action is not by the child to recover for its injuries but by the father, to recover the loss suffered by him.

F. Hertenstein, Corporation counsel.

C. W. Baker, M. Q. Heintz, for defendants.

We are of opinion that the conduct of the father was negligent, and that he has no right to recover

Tt is not necessary to declare that his conduct was negligent as matter of law. Tt is clear to us that as a matter of fact it was negligent to send this three year old child our, into the street unattended, where other children were playing near a perilous location of the existence of which the father had knowledge.

We think the motion for a new trial should have been granted and the verdict set aside on the ground that it was manifestly contrary to the weight of the evidence.

Judgment reversed. Hunt and Wilson, JJ., concur.  