p. 499Elizabeth Joost, an Infant, by Bernard Joost, Her Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.Headnote
Negligence---injury to child of tender years in absence of attendant — charge — negligence of attendant not attributable to child’s mother.A child of three years of age was put in charge of her. elder sister by the mother] and during a temporary absence of the sister strayed into the street and was injured.
The court refused to charge that, if the elder daughter were negligent in failing to take care of the child properly, the negligence was attributable to the mother. ’ ...
Held, no error, as the daughter’s negligence would not be chargeable to the mother but to the child injured.
Requests to charge must be strictly construed.
Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of Kings on the 25th day of January, 1905, upon the verdict of a jury for $8,000 ; also from an order entered in said clerk’s office on the 19th day of January, 1905, denying the defendant’s motion for a new trial made upon the minutes] and also from an order entered on the 2d day of February, 1905, granting an extra allowance.
I R. Oeland [George D. Yeomans with him on the brief], for the appellant.
Samuel S. Whitehouse, for the respondent.
The plaintiff, a child of three years, ivas put in charge of her twelve-year-old sister by her mother to be taken out to play. She took the child into the back yard and left her playing there while she went next door for a girl companion. • During the two minutes that she was gone the child went out into the street alone and was hurt by one of the defendant’s cars. The trial judge charged the jury that if the mother was negligent in allowing the child to go out with her sister there could be no verdict for the plaintiff, but
p. 500failed to charge .that if the sister was negligent in leaving the child alone ther,e could ie no verdict for. the. plaintiff. Thereupon coun:' sel for the defendant requested the' court to charge that if the daughter “- was guilty of .negligence in failing to take care of the child properly, then that is chargeable to the mother, and would be. . the negligence of the mother.” The refusal of the court was no : . error. Bequests to charge are matters of strictness.. They must be accurate in order to predicate error oU their refusal. .The negligence of the daughter would not be chargeable to the mother, Or be her negligence^ as "this, request was, although it would be attributable to the child.' - . - ■
The judgment should be affirmed.
Present — Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ.
Judgment and -order denying motion for new trial unanimously affirmed, with costs.
Order granting.extra allowance reversed, without costs, for want.' of .power in. the trial court to grant the same. ■ . >
Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ., concurred. •.