
    Michael Goldberg, by Samuel Goldberg, His Guardian ad Litem, Appellant, v. James Graham, Respondent.
    Second Department,
    October 27, 1911.
    negligence — infant • — contributory negligence of parents — question for jury — failure to warn child as to particular danger.
    It is not negligence, as a matter of law, to permit a child of six years of age to be upon the streets and sidewalks of a city.
    Nor is it a parent’s duty, as a matter of law, to warn such a child of dangerous places in the neighborhood before permitting him to play on the street.
    In an action by a child six years old to recover - for personal injuries received by falling into an excavation on defendant’s property which had been left unguarded for four years, in violation of a municipal ordinance, it is error to dismiss the complaint at the dose of plaintiff’s case upon the ground that, as plaintiff’s father had failed to warn him-of the danger of falling into this particular excavation, he could not recover.
    It is for the jury to say whether under all the facts and circumstances the conduct .of the parents in any given case constitutes reasonable care.
    Appeal by the plaintiff, Michael Goldberg, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of January, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a tria] at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 31st day of December, 1910, denying the plaintiff’s motion for a new trial made lipón the minutes.
    
      
      Alfred D. Lind [ John L. Bernstein with him on the brief], for the appellant.
    
      Richard Krause, for the respondent.
   Woodward, J.:

The infant plaintiff in this action fell into an unguarded building excavation on Coney Island avenue, borough of Brooklyn, in November, 1901, being at that time' about six years of age, and sustained injuries for which he seeks to hold the defendant, as the owner of the premises, liable. Section 22, chapter . 15 of the Code of Ordinances of the city of New York, part 5, provides that “All excavations for buildings shall be properly guarded and protected so as to prevent the same from becoming dangerous to life or limb.” ' The evidence in this case shows that the excavation where the plaintiff was injured had been dug some four years before the accident, and had remained unguarded during that time; that the excavation was upon the. building line, open to the street, and about four inches below the sidewalk level, so that it was open to the very danger which the ordinance was intended to guard against, and there was clearly a question for the jury as to. the defend-. ant’s negligence. This was held by the learned trial justice, but the complaint was dismissed upon the ground that - the plaintiff’s father' had failed to warn him- of the danger of falling into this particular excavation, which was three houses removed from the plaintiff’s home. On defendant’s motion to dismiss, the learned trial justice stated.that “While it is true that it is not necessarily negligence to let a child go out in the • street, if there is no other place for him to play, * * * It ought to appear at least that the child had been enjoined against playing in this dangerous place, and it does not appear that any such injunction had been ever laid upon him; and if not I am disposed to say that the case fails in the proof of absence of negligence on the part of the father, who would seem to have neglected the patent duty to enjoin the child when he went into the street to keep away from this dangerous place,” and-it appears from the record that it was -upon this theory that the complaint was' dismissed.

And here we find the learned trial justice asserting his own conception of parental duty, and determining a question of fact as one of law, when obviously intelligent and well-disposed men might differ upon the question. It has been held so many times that it is useless. to cite authorities that it is not negligence, as a matter of law, to permit children to be upon the streets and sidewalks of cities, and this has been asserted even of children younger than the plaintiff. (McGarry v. Loomis, 63 N. Y. 104, 107.) If it is not a question of law, then it follows that it is a question of fact, to be determined by all ofsthe facts and circumstances of the particular case,-and when facts and circumstances enter into the. determination, it is for the jury to consider them, not for the court. To say, as a matter of law, that it is the duty of a parent, every time a child goes out upon the street, to go over each dangerous situation —' e'ach likely source of danger — and to warn the child against such danger or even that it is the parental duty to give such warning of dangerous places at any time, is to exact a degree of care entirely inconsistent with the complex society in which we live, and it is not the law. This particular excavation had been there for four years; this child had been in the habit of playing in the street for a year or more, and no accident had resulted to him, though he may have have been in the presence of hundreds of situations equally or more dangerous, and the ■ jury might have found that the child, who appeared and testified, was capable of taking care of himself under ordinary circumstances, and that it Was not negligent in the parents to permit him to play upon the street without a special warning as to this particular danger. The fair question to be determined is' not as to a particular danger, after the accident has happened, but whether under all of the facts and circumstances the conduct of the parents constituted reasonable care.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Jerks, P. J., Burr, Thomas and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs . to abide the event.  