
    Solomon Newdoll, as Administrator, etc., App’lt, v. Julia Young et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    Negligence—Contributory.
    The owner of land, on which an excavation has been made, is not liable for the death of a child while playing therein, where its parents knew the danger and had forbidden it from going on the premises.
    Appeal from a judgment dismissing the complaint as to each defendant.
    
      Coley & Powell, for app’lt; Horace Graves, for resp’t Young; William S. Cogswell, for resp’t Thatcher.
   Dykman, J.

-—This is an action for negligence. The charge in the complaint against the defendant Julia Young is that she carelessly maintained a sandpit or excavation upon her land, and permitted various persons to take and carry away sand therefrom, and allowed the sand to be taken from an overhanging bank without support, without fencing or guarding the same in any way. The charge against the defendant Thatcher is that he carelessly excavated underneath a portion 'of the sandpit, and' left it open and exposed. It is then stated that the child of the plaintiff, under seven years of age, entered the excavation to play in the sand, and was killed by the falling in of the overhanging bank. The complaint was dismissed upon the trial, and the plaintiff has appealed from the judgment of dismission.

It was essential to the maintenance of the action that the plaintiff should-establish the freedom of his intestate from negligence, which contributed to the unfortunate result, if the deceased was sui juris. If he was non sui juris, then the same proof was requisite in relation to his parents, and the burden also rested upon the plaintiff to prove the violation of some duty by the defendants which they owed to the deceased. The facts relevant to the first two questions are these: The deceased boy was over six years of age. He went voluntarily upon the premises, without inducement or invitation from the defendants, and etitered the excavation to play in the sand. The excavation was deep and large, open and visible, and was overhung by a bank of earth. The dangerous character of the place was evident and apparent. The parents of the child both had knowledge of the existence of the dangerous opening in the earth, and had warned their child'of the dangerous character of the place. Nevertheless, the child went directly into the pit, and commenced to play in the sand under the overhanging bank, and was killed as a consequence. We think the facts make a plain case of contributory negligence against the child or the plaintiff, or both. Respecting the negligence of the defendant Young, assuming the lot in question to belong to her, it is to be said that she had the legal right to use the land according to her wish, and leave it as her interest or her convenience might dictate. The record discloses no circumstance which created any duty on her part to keep the premises in a safe condition. No duty was imposed upon her to protect the excavation. It is true the public had been permitted to cross th.e lot, but it was a case of mere permission, and the excavation was old and well known to the deceased and the plaintiff. As regards the defendant Thatcher, there is not the slightest ground for liability. He neither made the excavation, nor controlled it in any way. All he did was to take sand from the pit, as many others had done before him.

Our conclusion is that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.  