Goldberg v. Graham

The infant plaintiff in this action fell into an unguarded building excavation on Coney Island avenue, borough of Brooklyn, in November, 1901, being at that time' about six years of age, and sustained injuries for which he seeks to hold the defendant, as the owner of the premises, liable. Section 22, chapter . 15 of the Code of Ordinances of the city of New York, part 5, provides that “All excavations for buildings shall be properly guarded and protected so as to prevent the same from becoming dangerous to life or limb.” ' The evidence in this case shows that the excavation where the plaintiff was injured had been dug some four years before the accident, and had remained unguarded during that time; that the excavation was upon the. building line, open to the street, and about four inches below the sidewalk level, so that it was open to the very danger which the ordinance was intended to guard against, and there was clearly a question for the jury as to. the defend-. ant’s negligence. This was held by the learned trial justice, but the complaint was dismissed upon the ground that - the plaintiff’s father' had failed to warn him- of the danger of falling into this particular excavation, which was three houses removed from the plaintiff’s home. On defendant’s motion to dismiss, the learned trial justice stated.that “While it is true that it is not necessarily negligence to let a child go out in the • street, if there is no other place for him to play, * * * It ought to appear at least that the child had been enjoined against playing in this dangerous place, and it does not appear that any such injunction had been ever laid upon him; and if not I am disposed to say that the case fails in the proof of absence of negligence on the part of the father, who would seem to have neglected the patent duty to enjoin the child when he went into the street to keep away from this dangerous place,” and-it appears from the record that it was -upon this theory that the complaint was' dismissed.

And here we find the learned trial justice asserting his *503own conception of parental duty, and determining a question of fact as one of law, when obviously intelligent and well-disposed men might differ upon the question. It has been held so many times that it is useless. to cite authorities that it is not negligence, as a matter of law, to permit children to be upon the streets and sidewalks of cities, and this has been asserted even of children younger than the plaintiff. (McGarry v. Loomis, 63 N. Y. 104, 107.) If it is not a question of law, then it follows that it is a question of fact, to be determined by all ofsthe facts and circumstances of the particular case,-and when facts and circumstances enter into the. determination, it is for the jury to consider them, not for the court. To say, as a matter of law, that it is the duty of a parent, every time a child goes out upon the street, to go over each dangerous situation —' e'ach likely source of danger — and to warn the child against such danger or even that it is the parental duty to give such warning of dangerous places at any time, is to exact a degree of care entirely inconsistent with the complex society in which we live, and it is not the law. This particular excavation had been there for four years; this child had been in the habit of playing in the street for a year or more, and no accident had resulted to him, though he may have have been in the presence of hundreds of situations equally or more dangerous, and the ■ jury might have found that the child, who appeared and testified, was capable of taking care of himself under ordinary circumstances, and that it Was not negligent in the parents to permit him to play upon the street without a special warning as to this particular danger. The fair question to be determined is' not as to a particular danger, after the accident has happened, but whether under all of the facts and circumstances the conduct of the parents constituted reasonable care.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Jerks, P. J., Burr, Thomas and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs . to abide the event.