Birkett v. Knickerbocker Ice Co.

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

OPINION TEXT STARTS HERE

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.

Albert Stickney, for appellant.

James Troy, for respondent.

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 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 general safety, and must be permitted in cities, to amuse themselves upon the sidewalks, and they cannot always be attended by persons of discretion. The highest prudence would doubtless require that they should be so guarded, but it cannot be said, as matter of law, that ordinary prudence forbids that a bright child four and one-half years old, properly instructed and cautioned, should go unattended onto a sidewalk for diversion. We are also of opinion that there was no error in submitting the question of the negligence of the defendant's driver to the jury. His wagon was heavily loaded, and he was driving upon a descending grade. There was apparently nothing to distract his attention, and it was his duty to be vigilant to see pedestrians in the street, and particularly at street crossings, so as not to...

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62 cases
  • Campbell v. Laundry
    • United States
    • North Carolina Supreme Court
    • December 9, 1925
    ...Dorr v. Atlantic 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'Rei......
  • Campbell v. Model Steam Laundry
    • United States
    • North Carolina Supreme Court
    • December 9, 1925
    ... ... 27; Dorr v ... Atlantic Shore Line Ry. Co., 76 N.H. 160, 80 A. 336; ... Napurana v. Young, 74 N. J. Law, 627, 65 A. 1052; ... Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 18 ... N.E. 108; Levine v. Railway, 78 A.D. 426, 80 N.Y.S ... 48, affirmed Id., 177 N.Y. 523, 69 N.E ... ...
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    • April 8, 1974
    ... ... 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., ... ...
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    ... ... thereby, and the fact that the deceased was an infant does ... not change the rule." Birkett v. Knickerbocker Ice ... Co., 110 N.Y. 504; Coghlan v. Third Ave. R. R ... Co., 110 N.Y.S. 113; B. & O. R. Co. v. State, ... 60 Mo. 449; G. C. & ... ...
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