
    Annie Fisselmayer, an infant, etc., respondent, v. The Third Avenue Railroad Company, appellant.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 1, 1886.)
    
    Negligence—Contributory when question for jury.
    Plaintiff, who was sixteen months old, was loft by her mother with other children in charge of a sister who was twenty years of age, in a yard inclosed by a fence, the entrance to which was through a gate closed with a hasp and hook. The eldest child went into the house for a slate and when she returned the plaintiff had disappeared and wandered to the Third Avenue railroad, where she was run over by one of defendant’s cars. The children had been accustomed to play in this yard and plaintiff had never stolen away from it before. There was evidence to justify finding the car driver guilty of negligence. Held, that the child being non sui juris, his conduct was no bar to a recovery. Whether there was any negligence on the part of the mother was for the jury to determine.
    Appeal from a judgment in favor of the plaintiff.
    
      Edward Lauterbach, for appellant.
    
      E. M. Neville and W. C. Trull, for respondent.
    On the 22d of May, 1879, the plaintiff, who was then sixteen months old, lived with her parents in a house situate on the south side of Ninety-fifth street in this city, and about 150 feet east of the Third avenue upon which the defendant operates its railroad. About ten o’clock on the morning of that day the mother left her house to make some purchases, leaving the plaintiff and her other children in charge of her sister, who was then twenty years of age. The children, the eldest of whom was then seven years old, were playing in the yard inclosed by a fence, the entrance to which was through a gate which closed with a hasp and hook. The mother on leaving, passed through the gate, closing it after her and fastening the hasp. At about the hour mentioned the eldest child went into the house for a slate and when she returned the plaintiff had disappeared and wandered to the Third avenue, where she was run over by one of the defendant’s cars, one of her legs being cut off two inches below the knee joint. The children had been accustomed to play in this yard and the plaintff had never stolen away from it before. At the point where the child was ran over there is a down grade. The street was clear, but the car which was behind time, was running faster than usual and could not so readily be stopped. It was also shown that there was a wagon on the track ahead of the car which interfered with the more rapid progress desired, and that the driver was endeavoring to catch up to the wagon and lift it off the track, a performance which seems-from the evidence to be sometimes resorted to by the car drivers. The evidence also seems to establish that at about Ninety-third street the wagon had wheeled off the track and that the driver and conductor of the car were looking at the driver of the wagon, who was indulging in an offensive performance when suddenly the driver slipped his brake, there was a scream and the leg of the plaintiff was cut off. She had been caught by the brake, a circumstance which seemed to have saved her life. The driver admits that he went faster after the wagon left the track, He also-admits that the wagon annoyed him and the surrounding circumstances connected with the wagon, and his being behind time and his fast driving might have prevented his seeing the child as early as he would otherwise have done..
    These are the facts which the jury were authorized to find from the evidence, which is in some respects conflicting.
   Brady, J.

The only exceptions in this case are to the-refusal of the court to dismiss the complaint at the close of the plaintiff’s case and again at the close of the testimony. There was no exception to the charge of the learned judge nor any requests to charge presented. In the course of it the learned judge said that the child was of such tender years as not to be responsible for its own acts, but nevertheless the law was well settled that m cases of this character the burden of proof was upon the plaintiff to show that the parents of the child were not guilty of any negligence contributing to the production of the injury, and also that the accident was the result of the negligence of the defendant; that if the mother omitted to exercise such care in respect to the child as persons of ordinary prudence would exercise under the circumstances, the verdict must be for the defendant; and further, that if the jury found from all the evidence in the case that the mother was not guilty of a want of care and that the driver of the car could have avoided the accident by the exercise of proper care on his part, the verdict should be for the plaintiff.

The evidence in the case undoubtedly justified the conclusion that there was negligence on the part of the driver in the management of the car, and the question was—the plaintiff being non sui juris—whether there was any negligence on the part of the mother which would prevent a recovery. Under the circumstances disclosed it was undoubtedly proper and the rule is established by abundant authority, that that question should be submitted to the jury to be determined by them. Etherington v. P. P. C. and I. R. R. Co., 88 N. Y., 641; Pendergast v. N. Y. C. R. R., 58 id., 652; Mangam v. Brooklyn R. R. Co., 38 id., 455; Ihl v. Forty-second Street R. R. Co., 47 id., 317; Miller v. Woodhead, 22 N. Y. Weekly Dig., p. 58, opinion Brady, J.

The case of Pendergast v. N. Y C. R. R. Co. (supra) is similar to the one in hand. The infant in that case was two years of age and lived with its parents. The day of his death he was in the care of his mother at home. She was engaged in washing and the child was playing about the room. Having occasion to do so, she opened the outer door, which she left open. Upon her return the child was absent. She looked for him and found him lying upon one of the defendant’s tracks under an engine. The evidence showed that he had never been known to go out alone upon the railroad track, and had not shown in cold weather any disposition to go out of doors. The court held that a child of such tender years was clearly non sui juris, and his conduct, therefore, presented no bar to a recovery; and further, that the conduct of the mother was not, under the circumstances, negligence as matter of law, but the question of negligence was proper for the jury.

The case of Miller v. Woodhead, decided in this court, and reported in 22 Weekly Digest, page 58, is also analogous to the one at bar. And it was there held that in accordance with the spirit of all the cases bearing upon the subject lately reported, that the question of the negligence of the custodian of the infant was one which must be submitted to the jury, unless such negligence clearly appears as matter of law.

As it was the duty of the judge to submit the question to the jury, neither of the exceptions was of any value, and. .the judgment must therefore be affirmed.

Daniels, J., concurs.  