Opinion
Argued December 21, 1875
Decided January 18, 1876
A.J. Vanderpoel for the appellant. Edward D. McCarthy for the respondent.
The point principally relied upon by the learned counsel for the defendant is, that as a question of law the plaintiff could not recover, on the ground of the negligence of his mother, in permitting him to be in the street unattended. If this position cannot be maintained, no fault can be found with the charge of the court. The court charged, that if the mother omitted to exercise such care, in respect to the child, as persons of ordinary prudence would exercise under the circumstances, or if the child omitted to exercise such care as might reasonably be expected from one of his age, the verdict should be for the defendant. The child was over five years of age, and it was submitted to the jury to say whether he was sui juris.
The inquiry, therefore, is whether there were any facts proved sufficient to enable the jury to relieve the plaintiff from the imputed negligence of his mother. It appears that the mother resided in a tenement-house, on the first floor, leading into the back yard, and also into the street, down some stairs. The plaintiff had been playing in the back yard, with other children, and came in for a drink of milk. The mother gave him the milk, and he sat at the table to drink it, when the mother passed into the bed-room adjoining, to adjust her dress, leaving the door open, and telling the child to go back into the yard, and in five minutes notice was brought that the child was injured. The mother testified that the child had never before been in the street. Upon these facts, which we must assume for the purpose of this question the jury regarded as true, can it be affirmed that in law the mother was negligent. True, the child did pass into the street, but that fact is not conclusive. Effectual protection is not indispensable. Ordinary care relieves from the charge of negligence. Although a child five years old cannot be regarded as sui juris, yet such a child is not destitute of capacity. It possesses, in some degree, reason and judgment. It is capable of understanding what is said; it may be made subject to the will and direction of those having it in charge, and a mother may be assumed from natural love and affection vigilant in protecting it from harm.
It seems to me that the jury were justified in holding that the mother, under the circumstances detailed, had no reason to suspect that the child would go into the street, or that ordinary prudence would require any additional care to that which was actually exercised. The mother was absent from the actual presence of the child but a few brief moments. She had a right to presume that he would obey her direction, and go into the back yard, and this would be strengthened by the fact that he had never been in the street. True, the door might have been barricaded, but such an extraordinary measure would not be ordinarily necessary to keep the child from the street. It is not like the case supposed by counsel, of a dumb beast or lunatic. The child had reason, had always been tractable and quiet, and there is nothing to show that the mother had any reason to apprehend danger. From these facts the jury might find ordinary care. It is not improbable that the plaintiff was attracted by the children in the street, and suddenly escaped down the stairs. In the case of Mangam v. The Brooklyn R.R. Co. ( 38 N.Y., 455), a window was left open through which the child escaped into the street, and it was held a question of fact for the jury to determine whether proper care was exercised. Here the circumstances are quite as appropriate for the consideration of a jury. I think that the charge of the judge at the Circuit upon the question of negligence of both child and mother was strictly accurate, and the rulings upon the requests to charge were in conformity with the charge. As to the negligence of the defendant's driver, it is very clear that the evidence was sufficient to justify the finding of the jury. There was evidence tending to show that the child was struck by one of the horses in front; that the car was being driven at an unusual rate of speed, and that the driver was engaged in conversation with persons standing on the platform, and was not looking or giving any attention to his horses, or persons crossing the street. It is true there was a serious conflict upon these points, but they were questions for the jury, and the verdict is conclusive upon this court.
The case was fairly tried, and as I am unable to find any error of law committed upon the trial the judgment must be affirmed.
All concur.
Judgment affirmed.