Joost v. Brooklyn Heights Railroad

113 A.D. 499, 99 N.Y.S. 409, 1906 N.Y. App. Div. LEXIS 1469

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1906
• Status: Published

Opinion

Gaynor, J.:

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 failed 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. •.