
    Bessie McKenna, by Guardian, Respondent, v. The Buffalo Brass Bedstead Co., Appellant.
    (Superior Court of Buffalo
    General Term,
    May, 1895.)
    The parents of a child are not chargeable with negligence, as matter of law, where the child was not usually allowed to go in the street unattended and on the occasion of the injury had run into the street without her mother’s knowledge while the latter was engaged in her household duties.
    Appeal from judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial on the minutes.
    
      Philip A. Laing, for respondent.
    
      Decker <& Farnham, for appellant.
   Titus, Oh. J.

The plaintiff, a child two years and three months old, was run over and injured by a team driven by the defendant’s servant on West avenue, in this city. The child was in the street when the accident occurred, although not accustomed to go into the street unattended, and was usually in charge of a servant. On this occasion the child, without the knowledge of its mother, went into the street, and the defendant’s team knocked her down, and seriously injured her.

We think the case was properly submitted to the jury. There was some evidence that the defendant’s teamster saw the child and could easily have avoided the accident. His conduct in managing the team was in controversy on the trial, and it became a question for the jury to pass upon. We do not think the parents of the child can be charged with want of care; while her mother was engaged in her household duties the child ran across the street, without her knowledge. It was not in the custody of the servant in the sense that because when she sa'w the child in the street she did not immediately go for it the law charges her with negligence. The case of Birkett v. Knickerbocker lce Co., 110 N. Y. 504, is so parallel in its facts that the rule there laid down must control in the decision of this case. Judge Earl, in writing the opinion of the court, speaking of the child, says: “ She had permission only to play upon the sidewalk, and was never allowed to cross the street. * * * 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 onto the sidewalk to play, and whether it was or not was a question for the determination of the jury.”

We think, therefore, no error was committed by the court in submitting to the jury all of the evidence bearing upon the negligence of the plaintiff and defendant, and the verdict of the jury should not be disturbed.

The judgment must, therefore, be affirmed, with costs.

Hatch, J., concurs.

Judgment affirmed, with costs.  