Birkett v. Knickerbocker Ice Co.,

CourtNew York Court of Appeals
Writing for the CourtEARL
Citation110 N.Y. 504,18 N.E. 108
PartiesBIRKETT v. KNICKERBOCKER ICE CO.
Decision Date02 October 1888

110 N.Y. 504
18 N.E. 108

BIRKETT
v.
KNICKERBOCKER ICE CO.1

Court of Appeals of New York.

October 2, 1888.


Appeal from supreme court, general term, Second department.

The general term affirmed a judgment for plaintiff, entered upon the verdict of a jury, at the Kings county circuit.


[110 N.Y. 504]Albert Stickney, for appellant.

[110 N.Y. 505]James Troy, for respondent.


[110 N.Y. 506]EARL, J.

The plaintiff claims that the intestate came to her death from the carelessness of the defendant, and he has brought this action to recover ‘compensation for the pecuniary injuries' resulting from the death to her next of kin. The intestate was plaintiff's daughter, and at the time of her death was four and one-half years old. The horses attached to one of defendant's ice wagons were driven against her at a street crossing where Franklin and Java streets, in the city of Brooklyn, intersect, and she was thus fatally injured. If the intestate had been an adult, we think the evidence would have justified the claim of the defendant that her own negligence contributed to the injury. But she was non sui juris, and personal negligence could not be imputed to her. It is, however, contended that she was so young that her parents were guilty of negligence in permitting her to go into the streets unattended. The intestate resided with her parents in a thickly populated neighborhood, and there was no inclosed [110 N.Y. 507]space around the house for children to play, and plaintiff's children were permitted to play upon the sidewalk near his house. On the 20th day of August, 1884, about 4 o'clock P. M., the intestate left the house with her brother, about six years old, to play upon the sidewalk with other children. She had permission only to play upon the sidewalk, and was never allowed to cross the street. She was a healthy, sharp, bright, intelligent child. She had been out but a short time when her brother left her, and, while she was attempting to cross the street, she received the fatal injuries. It was not unlawful for the child to be in the street, nor even for her to play upon the sidewalk. It cannot be said that it was, as matter of law, under the circumstances proved, negligence for the parents to permit her to go onto the sidewalk to play, and whether it was or not was a question for the determination of the jury. Oldfield v. Railroad Co., 14 N. Y. 310;Ihl v. Railroad Co., 47 N. Y. 317;McGarry v. Loomis, 63 N. Y. 104. Hundreds of young children are permitted with...

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48 practice notes
  • Lastowski v. Norge Coin-O-Matic, Inc., COIN-O-MATI
    • United States
    • New York Supreme Court Appellate Division
    • April 8, 1974
    ...to have done under the circumstances, was a question for the jury, and not for the court. Birkett v. K.I. Co., 110 Page 454 N.Y. 504, 506, 18 N.E. 108; Kunz v. City of Troy, 104 N.Y. 344, 10 N.E. 442; Stackus v. N.Y.C. & H.R.R.R. Co., 79 N.Y. The fact that the contributory negligence of......
  • Campbell v. Laundry, (No. 460.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 9, 1925
    ...Shore Line Ry. Co., 76 N. H. 160, 80 A. 336; Napurana v. Young, 74 N. J. Law, 627, 65 A. 1052; Bir-kett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. E. 108; Levine v. Railway, 78 App. Div. 426, 80 N. Y. S. 48, affirmed Id., 177 N. Y. 523, 69 N. E. 1125; MacDonald v. O'Reilly, 45 Or. 589, ......
  • Ryan v. Fahey
    • United States
    • New York Supreme Court Appellate Division
    • February 22, 1974
    ...N.Y. 156, 80 N.E. 1025; Weil v. Dry Dock, East Broadway and Battery R.R. Co., 119 N.Y. 147, 23 N.E. 487; Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 18 N.E. 108; Kunz v. City of Troy, 104 N.Y. 343, 10 N.E. 442; McGarry v. Loomis, 63 N.Y. 104; Ihl v. Forty-Second St. and Grand St. Ferry ......
  • Courtney v. Apple, No. 49
    • United States
    • Supreme Court of Michigan
    • October 1, 1955
    ...[of the jury] is not an uncontrollable one,' said the New York Court of Appeals, in a child death case, Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 508, 18 N.E. 108, 110. It was the same court, Houghkirk v. Delaware & H. C. Co., 92 N.Y. 219, 225, which said in speaking of the power ......
  • Request a trial to view additional results
48 cases
  • Lastowski v. Norge Coin-O-Matic, Inc., COIN-O-MATI
    • United States
    • New York Supreme Court Appellate Division
    • April 8, 1974
    ...to have done under the circumstances, was a question for the jury, and not for the court. Birkett v. K.I. Co., 110 Page 454 N.Y. 504, 506, 18 N.E. 108; Kunz v. City of Troy, 104 N.Y. 344, 10 N.E. 442; Stackus v. N.Y.C. & H.R.R.R. Co., 79 N.Y. The fact that the contributory negligence of......
  • Campbell v. Laundry, (No. 460.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 9, 1925
    ...Shore Line Ry. Co., 76 N. H. 160, 80 A. 336; Napurana v. Young, 74 N. J. Law, 627, 65 A. 1052; Bir-kett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. E. 108; Levine v. Railway, 78 App. Div. 426, 80 N. Y. S. 48, affirmed Id., 177 N. Y. 523, 69 N. E. 1125; MacDonald v. O'Reilly, 45 Or. 589, ......
  • Ryan v. Fahey
    • United States
    • New York Supreme Court Appellate Division
    • February 22, 1974
    ...N.Y. 156, 80 N.E. 1025; Weil v. Dry Dock, East Broadway and Battery R.R. Co., 119 N.Y. 147, 23 N.E. 487; Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 18 N.E. 108; Kunz v. City of Troy, 104 N.Y. 343, 10 N.E. 442; McGarry v. Loomis, 63 N.Y. 104; Ihl v. Forty-Second St. and Grand St. Ferry ......
  • Courtney v. Apple, No. 49
    • United States
    • Supreme Court of Michigan
    • October 1, 1955
    ...[of the jury] is not an uncontrollable one,' said the New York Court of Appeals, in a child death case, Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 508, 18 N.E. 108, 110. It was the same court, Houghkirk v. Delaware & H. C. Co., 92 N.Y. 219, 225, which said in speaking of the power ......
  • Request a trial to view additional results

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