Weil v. Dry Dock, East Broadway & Battery R. R.

O’Brien, J. This action was brought to recover damages for personal injuries sustained by the plaintiff, she having been *945 thrown down and run over by one of the defendant’s cars passing in front of the plaintiff’s residence in Lewis street, in the city of New York, on the 13th day of July, 1886. On the trial of the action in the superior court the plaintiff was nonsuited, and this judgment has been affirmed by the general term of that court. The question here is whether the trial court, upon the testimony before it, was warranted in disposing of the case as a question of law instead of submitting it.to the jury as one of fact. The plaintiff at the time the accident occurred was a few days under two years of age, and the nonsuit proceeded upon the ground that her parents, with whom she lived, neglected to exercise that care and restraint over her that the law requires in case of children of such tender years; that this neglect is imputable to the plaintiff and precludes her from recovering damages for the injury. It appears that the plaintiff, with her father and mother, at the time the accident occurred, resided on the first floor of a house in Lewis street, the father keeping a bakery store on the same floor, and a bakery underneath, or in the basement, and carried on the bakery business. The street in front through which the railroad runs, and where the plaintiff was injured, is about twenty-six feet in width from curb to curb. The fires in the bakery under the store, and the heat of the day, raised the temperature in the rooms on this narrow street to such a degree that the door leading to the street was left open. About four or five o’clock of the day the mother of the child, desiring to do some cooking in the kitchen,took her to her father in the store, and requested him to take care of her. The child, after playing and talking with her father for a couple of minutes, went behind the counter and remained there some time. While she was there, or at least while the father supposed she was there, he proceeded to make some entries on his books in regard to the business of the day, and while he was thus engaged the child escaped through the door into the street, and was run over by one of defendant’s cars. The evidence is not very clear as to the period of time that the plaintiff was absent from the father’s sight prior to the accident, but we think that the jury could have found that it did not exceed two minutes, and it was not more than ten or fifteen minutes from the time that the mother left the plaintiff with the father in the store to the time that the accident actually occurred. That the plaintiff was quite seriously, if not permanently, injured is not disputed. In regard to the negligence of the defendant it was shown that it was a one-horse car, with a driver, but no conductor. When approaching the bakery, where the plaintiff lived, and for a space of eighty to 100 feet the horse was driven on a gallop at the rate of from seven to ten miles per hour. The driver could have seen the plaintiff in the street had he been looking ahead, but his attention was directed to the rear of the car, and to the opposite side of the street, to warn off some boys who were improperly attempting to ride upon the rear platform. It is apparent that the *946 driver did not see, and could not have seen, the plaintiff when she was struck, as his back was toward the horse, and the same rate of speed was kept up for a considerable distance past the point in the street where the accident happened. There was, therefore, evidence in the case competent and proper for the consideration of the jury on the question of the defendant’s negligence. We think that, the trial court was not warranted in deciding upon the evidence as it stood when the- case was closed that, as matter of law, the parents of the plaintiff neglected to observe that degree of care and watchfulness in regard to her movements, under all the circumstances, that the law imposed upon them. In reviewing a judgment of nonsuit the plaintiff is entitled to the most favorable inferences deducible from the evidence, and all contested questions of fact are to be deemed established in her favor and when, from the facts and circumstances shown, inferences are to be drawn which are not certain and incontrovertible, the question becomes one of fact. The plaintiff’s parents were bound to protect her from danger so far as that could be done by the exercise of reasonable prudence and care. The law did not require the father to suspend his business and keep the child every moment under his eye. He was required only to exercise such a degree of care as was reasonable in his situation and under all the circumstances of the case. Whether in this case the father did, in fact, all that a reasonably careful and prudent man ought to have done under the circumstances, was a question for the jury and not for the court. Birkett v. Knickerbocker Ice Co., 110 N. Y., 506; 18 N. Y. State Rep., 130; Kunz v. City of Troy, 104 N. Y., 344; 5 N. Y. State Rep., 642 ; Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y., 464. The case, therefore, should have been submitted to the jury. The judgment should be reversed and a new trial ordered, costs to abide the event. All concur, except Earl, J., absent.