By the Bourt,
Emott, J.
The plaintiff was run over by a car of the defendants in July, 1858, at the corner of North Tenth and First streets in Williamsburgh, and very severely injured, and this action is brought for damages for this injury. It is conceded that the defendants’ driver, who had the control of the car, was guilty of negligence. He was sitting at the time upon the railing of the platform of his car, his face turned away from the horses or mules, and from the direction in which the car was going. His attention was absorbed by a bird which he had in his hands, while the reins of his animals were twisted about the brake of the car. The car was drawn by mules, and was proceeding at a steady though not a rapid pace. It is not using too strong language to say that this was gross negligence on the part of the driver of such a vehicle. It was in effect to leave the vehicle moving uncontrolled through the public streets—a vehicle which is in some respects more dangerous to other passengers on foot or in carriages than any ordinary carriage. If the danger of a collision with a rail road car is not greater, the consequences of such a collision, when it does occur, are far more serious and less easily prevented than in the case of common vehicles.
The plaintiff was coming down North Tenth street as the car was coming along First street, and in attempting to cross the track in advance of the car, he was struck by some projecting portion of the car, thrown down and run over by both wheels. At what distance from the crossing of the two streets the car was when the plaintiff set out to cross First street, does not perhaps very distinctly appear. One witness [237]*237says, that when the plaintiff was four or five feet from the corner of the streets, the car was half a block off; and another, that he first saw the plaintiff ten or fifteen feet from the car. In an ordinary case the question would occur, in this stage of the cause, whether the plaintiff was careless of his safety in attempting to cross the street before the car should have passed: that is, whether a person of ordinary prudence, attentive to the circumstances, would have seen that it would be dangerous to attempt to cross the street before the car, or whether there was in point of fact sufficient time to have crossed, with ordinary exertions and no misadventure on the part of the passenger, and ordinary care in the driver of the car. No doubt if the car was so near when the plaintiff set out to cross the street that it was rash and hazardous to attempt to do so, then, in an ordinary case, possessing no other features, the negligence of the person injured would deprive him of any redress for his injury, notwithstanding the misconduct of the person entrusted with the car. No matter how gross or evident the negligence of the driver of a vehicle, if another by his own negligence exposes himself to injury from the vehicle, he has no remedy.If, however, no other considerations but these had entered into this case, I apprehend the learned judge who presided at the trial would not have felt himself called upon to withhold the case from the jury. The question of negligence in such actions is undoubtedly a question of law, upon an admitted or an unquestioned state of facts. But whether, in a given case, the distance between an approaching vehicle and a passenger in a street, or the circumstances of either, are such that a particular movement might be prudently undertaken, and could, and but for misconduct would, probably have been effected without collision or injury, is often a mixed question of distances, conditions, the ability of the person, and the speed and movement of the vehicle, which must be left to a jury with proper instructions.
’ This, however, is not the point upon which the present [238]*238case turns. There is a fact in the case which is yet to he mentioned, that renders the questions which have now heen referred to comparatively if not wholly immaterial. The plaintiff was an infant of tender years; at the time of this occurrence he was a child of less than four years of age. He was therefore necessarily incapable of exercising forethought or discretion, or of anticipating or protecting himself against the dangers to which he would be exposed in the thoroughfares of a great city. Because he was incapable of discretion, however, he was not' therefore above all law. The plaintiff had parents living, and he was under their charge and protection. The law makes him responsible for their acts and omissions as if they were his own, because this is the only way in which the rule of mutual care and responsibility between persons using the highway can be enforced, in such cases. Their negligence must be regarded as his negligence, for the purposes of this action. Although want of care cannot be imputed to a child for not avoiding a passing vehicle, it may be charged upon those who have the charge of the child, if they suffer him to go, unprotected, where vehicles are passing, and where care and forethought must be required, beyond what he is capable of exercising. The rule and its reason remain the same, but its application is modified, or directed to another part of the case. I am not, however, prepared to admit the converse of the proposition to which I referred a moment ago. The defendants in such a case as this are not above all law, any more than the plaintiff!, because he was of tender years and incapable personally of care and forethought. Their servant was guilty of grievous negligence, and they are liable for the consequences to the plaintiff, unless those for whose conduct the plaintiff is responsible were also guilty of negligence which contributed to the result. To allow a child of such tender years to go at large in a public street, without a protector, would unquestionably be such negligence in his parents or guardians. Such was the state of facts in Hartfield v. Roper, (21 Wend. [239]*239615,) which is and deserves to be a leading case, for the veryj able opinion of Judge Cowen. Such was the rule approved by us in Lehman v. The City of Brooklyn, (29 Barb. 234.) So also the fact that a young child who has parents or other guardians and protectors, is found alone and unwatched in the street, is presumptive evidence that he was so exposed voluntarily or negligently by his protectors, and that their negligence thus contributed to his injury. But the fact that the child is in the street alone, or in the way of a vehicle alone, is not conclusive that he is there by the negligence of those for whose care the law holds him responsible. It is a fact which admits of explanation, and notwithstanding which the question of negligence is open to inquiry. A child may be in the street in the immediate charge, of a competent person, and it may escape from that charge, and fall into danger and disaster. Or it may be suitably guarded and restrained from going into the street, and yet it may elude its restraints, and be in the way of danger or destruction before its protectors are aware of it. The question then is, whether these protectors exerted due care and diligence to prevent the child from going where it would necessarily be in danger. It is a similar question to that which occurs in the case of an adult, when he must prove that he neglected no precaution and exercised due forethought to avoid such dangers; except that the care and watchfulness are required at an earlier stage of the occurrence, and the inquiry goes farther back in the chain of causes which lead to the result.
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By the Bourt,
Emott, J.
The plaintiff was run over by a car of the defendants in July, 1858, at the corner of North Tenth and First streets in Williamsburgh, and very severely injured, and this action is brought for damages for this injury. It is conceded that the defendants’ driver, who had the control of the car, was guilty of negligence. He was sitting at the time upon the railing of the platform of his car, his face turned away from the horses or mules, and from the direction in which the car was going. His attention was absorbed by a bird which he had in his hands, while the reins of his animals were twisted about the brake of the car. The car was drawn by mules, and was proceeding at a steady though not a rapid pace. It is not using too strong language to say that this was gross negligence on the part of the driver of such a vehicle. It was in effect to leave the vehicle moving uncontrolled through the public streets—a vehicle which is in some respects more dangerous to other passengers on foot or in carriages than any ordinary carriage. If the danger of a collision with a rail road car is not greater, the consequences of such a collision, when it does occur, are far more serious and less easily prevented than in the case of common vehicles.
The plaintiff was coming down North Tenth street as the car was coming along First street, and in attempting to cross the track in advance of the car, he was struck by some projecting portion of the car, thrown down and run over by both wheels. At what distance from the crossing of the two streets the car was when the plaintiff set out to cross First street, does not perhaps very distinctly appear. One witness [237]*237says, that when the plaintiff was four or five feet from the corner of the streets, the car was half a block off; and another, that he first saw the plaintiff ten or fifteen feet from the car. In an ordinary case the question would occur, in this stage of the cause, whether the plaintiff was careless of his safety in attempting to cross the street before the car should have passed: that is, whether a person of ordinary prudence, attentive to the circumstances, would have seen that it would be dangerous to attempt to cross the street before the car, or whether there was in point of fact sufficient time to have crossed, with ordinary exertions and no misadventure on the part of the passenger, and ordinary care in the driver of the car. No doubt if the car was so near when the plaintiff set out to cross the street that it was rash and hazardous to attempt to do so, then, in an ordinary case, possessing no other features, the negligence of the person injured would deprive him of any redress for his injury, notwithstanding the misconduct of the person entrusted with the car. No matter how gross or evident the negligence of the driver of a vehicle, if another by his own negligence exposes himself to injury from the vehicle, he has no remedy.If, however, no other considerations but these had entered into this case, I apprehend the learned judge who presided at the trial would not have felt himself called upon to withhold the case from the jury. The question of negligence in such actions is undoubtedly a question of law, upon an admitted or an unquestioned state of facts. But whether, in a given case, the distance between an approaching vehicle and a passenger in a street, or the circumstances of either, are such that a particular movement might be prudently undertaken, and could, and but for misconduct would, probably have been effected without collision or injury, is often a mixed question of distances, conditions, the ability of the person, and the speed and movement of the vehicle, which must be left to a jury with proper instructions.
’ This, however, is not the point upon which the present [238]*238case turns. There is a fact in the case which is yet to he mentioned, that renders the questions which have now heen referred to comparatively if not wholly immaterial. The plaintiff was an infant of tender years; at the time of this occurrence he was a child of less than four years of age. He was therefore necessarily incapable of exercising forethought or discretion, or of anticipating or protecting himself against the dangers to which he would be exposed in the thoroughfares of a great city. Because he was incapable of discretion, however, he was not' therefore above all law. The plaintiff had parents living, and he was under their charge and protection. The law makes him responsible for their acts and omissions as if they were his own, because this is the only way in which the rule of mutual care and responsibility between persons using the highway can be enforced, in such cases. Their negligence must be regarded as his negligence, for the purposes of this action. Although want of care cannot be imputed to a child for not avoiding a passing vehicle, it may be charged upon those who have the charge of the child, if they suffer him to go, unprotected, where vehicles are passing, and where care and forethought must be required, beyond what he is capable of exercising. The rule and its reason remain the same, but its application is modified, or directed to another part of the case. I am not, however, prepared to admit the converse of the proposition to which I referred a moment ago. The defendants in such a case as this are not above all law, any more than the plaintiff!, because he was of tender years and incapable personally of care and forethought. Their servant was guilty of grievous negligence, and they are liable for the consequences to the plaintiff, unless those for whose conduct the plaintiff is responsible were also guilty of negligence which contributed to the result. To allow a child of such tender years to go at large in a public street, without a protector, would unquestionably be such negligence in his parents or guardians. Such was the state of facts in Hartfield v. Roper, (21 Wend. [239]*239615,) which is and deserves to be a leading case, for the veryj able opinion of Judge Cowen. Such was the rule approved by us in Lehman v. The City of Brooklyn, (29 Barb. 234.) So also the fact that a young child who has parents or other guardians and protectors, is found alone and unwatched in the street, is presumptive evidence that he was so exposed voluntarily or negligently by his protectors, and that their negligence thus contributed to his injury. But the fact that the child is in the street alone, or in the way of a vehicle alone, is not conclusive that he is there by the negligence of those for whose care the law holds him responsible. It is a fact which admits of explanation, and notwithstanding which the question of negligence is open to inquiry. A child may be in the street in the immediate charge, of a competent person, and it may escape from that charge, and fall into danger and disaster. Or it may be suitably guarded and restrained from going into the street, and yet it may elude its restraints, and be in the way of danger or destruction before its protectors are aware of it. The question then is, whether these protectors exerted due care and diligence to prevent the child from going where it would necessarily be in danger. It is a similar question to that which occurs in the case of an adult, when he must prove that he neglected no precaution and exercised due forethought to avoid such dangers; except that the care and watchfulness are required at an earlier stage of the occurrence, and the inquiry goes farther back in the chain of causes which lead to the result.
My learned associate before whom this cause was tried granted a nonsuit, on the ground that the presence of such a child alone in the street, was of itself such an act of negligence, or such evidence of negligence, in his parents, that he could not recover for the injury which befell him. I agree that, unexplained, it would be so. But the question is, whether this child was in the street by the consent or through the neglect of his parents, or in spite of their precautions ; and whether those precautions were sufficient to answer the [240]*240demands of prudence and consideration. The child was at home at his father’s house in First street, three doors from the corner of Forth Tenth street, through which latter street the rail road passes. His mother and a step-sister were in the basement hall washing, and the child was playing in the basement under their observation. The street door was closed and locked, and the child was not left alone during the afternoon, except at about twenty minutes before four, when one or both the women went into the yard to hang up clothes to dry. One of these women testifies, that at that time she saw the boy on a balcony in the rear of the house with his brother. When she returned to the room or the hall, he had probably escaped through one of the front basement windows, although she was not aware of it. In a very few minutes he was brought home, with his leg crushed by the car wheel; for another witness who saw the occurrence says that it happened before four o’clock. It is exceedingly probable that, the child, after getting out of the window, ran directly down the street, and at once encountered the car at the corner. The sister of the plaintiff states that she never knew the child to go or be out alone in the street. The window through which he got out was open, and was about four feet from the floor. I think we can see, that in the circumstances of such a family as this appears to be, it would be impossible to provide a child of this age with a constant companion—one who should be every instant at hand. The support of a family is no less a duty of the parents than its protection, and for this all who can labor must be constantly occupied with their daily tasks. The law cannot exact more than nature dictates; nor can I say that the act of leaving a child of three years of age alone for a few minutes in the house while the door was closed, although a window was open, because its mother or sister were called into another part of the premises, in the discharge of their household duties, was of itself an act of negligence. Was it then a want of ordinary care to leave a window four feet from the floor open, through [241]*241which the child might escape by climbing to it and out of it ? The degree of care demanded of the parents of a child, under such circumstances, is the same which is exacted of a person of discretion in the protection of himself. It is ordinary care, the apprehension of, and the provision against, ordinary occurrences and risks. The question is, whether the person in charge of the child, leaving it in the room, or upon the balcony in the rear of the house, where it was last seen and whence it must have returned to the'- room, was bound to foresee that the child might or would clamber out of the window, and therefore to fasten it. To justify this nonsuit we must assume that this was so, and that a jury could not even have been permitted to find otherwise, or we must assume that the women were negligent in not pursuing the child into the street, which implies that he was there so long that they ought to have known it, and that they could have overtaken him, and thus prevented the calamity which ensued.
I am not prepared to decide these questions as matter of law, or to lay down as a rule or proposition expressly, that the parents of this child did not exercise ordinary care in watching it, and preventing its getting into the street where it would be in danger. It certainly was not in the street by their consent or permission, and although a pierfect restraint, an absolute fastening of every access to the street, would of course have confined it to the house, it cannot be that ordinary care in the case of a child of this age demands so complete an imprisonment. I cannot say that these parents should be held guilty of a moral wrong in neglecting their child when he found his way out of the house, and therefore responsible, morally at least, for the painful consequences, as they must be if they were guilty of such negligence as removes the ground of this action. Such consequences were possible, but I cannot say they were probable, from what they did or what they omitted, and it is only for a neglect of probable consequences that they are responsible. The [242]*242question of their negligence ought, at least, in my opinion, to have been left to the jury. It involves various considerations and inferences, and it is not so clear that I am prepared to decide it as a question of law against the plaintiff. I am not to be understood of course as saying, on the other hand, that I consider it the duty of the court to have decided this question expressly in favor of the plaintiff. It is sufficient that there is a question, of mingled fact and inference, and not purely of law, and therefore a question for a jury, under proper instructions.
[Kings General Term,
February 10, 1862.
Bmott, Brown and ScrugJiam, Justices.]
I am of opinion that this- nonsuit should be set aside and a new trial ordered; and in this opinion, upon consideration, my brethren concur.