Majority
p. 386Thomas Hyland, Appellant, v. John Burns and James V. Johnson, Composing the Firm of Burns & Johnson, Respondents.
Headnote
Negligence■—whether a child seven years and four months old is sui juris — whether its mother is negligent in allowing it to play in a street.The question whether a child of the age of seven years and four months is sui juris is one for the jury.
Whether the mother of such a child, who cautioned it, when upon the street, to stay in front of the house, was negligent in permitting it to remain absent for about half an hour, she understanding that it was playing upon the street, during which time it was injured by stone piled in the street in front of another’s lot falling upon it, also presents a question for the jury.
Appeal by the plaintiff, Thomas Hyland, from a judgment of the City Court of Brooklyn in favor of the defendants, entered in the office of the clerk of said court on the 18tli day of December, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of said court.
The action was brought to recover damages for injuries alleged to have been caused by the negligence of the defendants in wrongfully and negligently piling and storing upon a public highway, in front of defendants’ stone yard, stones and flagging, in such wise as to cause the same to fall over and injure the infant child of the plaintiff who was playing on the street.
John J. Leary, for the appellant.
Paul E. De Fere, for the respondents.
The jury would have been authorized to And, upon the evidence, that the piling of the stone in the street line constituted an unlawful obstruction in the street, and was, therefore, a nuisance. (Cohen v. The Mayor, 113 N. Y. 534 ; Wills v. City of Brooklyn, 9 App. Div. 61 .)
If the child was sui juris, which may not be affirmed as matter of law, the question of her negligence was for the jury upon the evidence. If sire was not sui juris the question arises upon the negligence of the parents. The child was seven years and four months
p. 387
■ old. The mother testified that she cautioned the child when upon the street to stay in front of the house. At the time the mother was engaged about her household duties. The child had been absent for about half an hour and the mother understood that she was at play upon the street. Under these circumstances the question whether proper care required of the mother more attention than she gave the child was for the jury to answer. The father of the child worked in the stone yard, opposite which the stone was piled, and evidence was given by the defendants which tended to establish that he was instrumental in creating the obstruction which occasioned the injury. If this fact was conceded we should have an entirely different question from that which disposes of this appeal. But this fact was not conceded. On the contrary, he testified that he had not worked at this place during the spring and winter prior to the injury. And the proof of the defendants fails to show that the father piled the stones that inflicted the injury. We are of opinion that the case presented a question of fact for the jury, and that the court erred in disposing of it as a question of law.
The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.
Cases cited
- Wells v. City of Brooklyn 9 App. Div. 61 p. 386