#### Albert Lowery, an Infant by Guardian, Plaintiff, *v.*The New York Ice Co., Defendant.

(Supreme Court, New York Trial Term,

January, 1899.)

Negligence — Of parents attributed to child non sui juris.

Where a child aged five years, accompanied only by a younger sister, is run over at night by an ice cart while crossing a street at a point where there was no sidewalk, and there is no proof as to which party was at fault, the negligence of the parents, in allowing a child *non sui juris*to wander about at night unaccompanied by a person of age and discretion, must be attributed to the child and prevents a recovery by it against the corporation controlling the ice cart.

Action to recover $10,000, for injuries to plaintiff, caused by negligence.

H. Gottlieb, for plaintiff.

Nadal, Smyth, Carrere & Trafford, for defendant.

McAdam, J.

Accidents so frequent in our utilitarian age prove unfortunate, not only to the victims, but those dependent upon them or obliged to provide for them in the hour of sorrow. Spontaneous sympathy goes out to the unfortunates from all. This is as it should be. But when the injured party appears in court as a litigant claiming compensation, there are certain inflexible rules which regulate the rights and liabilities of the parties, and these cannot be departed from. A court is called upon to administer justice impartially, according to established law1 and precedent, without regard to prevalent sentiment or sympathy. The child injured was five years old. It had wandered from its home in company with a sister a little younger, and attempted to cross Chrystie street, near Rivington, at 8 :30 o’clock on the evening of June 13, 1898. There is no proof that the driver of the defendant’s ice cart saw thé5 child before the injury or did any wanton damage to it. The child, on account of its extreme youth, could not appreciate the dangers of the situation, nor protect itself from them. The child was clearly *non sui juris,*and the negligence of its parents in permitting it to go upon the streets unattended is clearly attributable *164to it. Juskowitz v. Dry Dock, etc., R. R. Co., 25 Misc. Rep. 64. The child in some manner not clearly explained came in contact with the horses of the ice cart and was injured. Whose fault occasioned the injury is not made clear by the evidence. The ice cart was where it had a right to be, and the child was where it should not have been at that hour of the night unattended by a person of age and discretion. If the accident had occurred at a street crossing, or in the day-time when children congregate in the street, the case might have been one for the jury on the ground of negligence on the part of the driver, but as the accident occurred in the nighttime when the driver was not bound to anticipate that such little tots would be upon the highway, he was not bound to act upon the assumption that they were there, and there can be no recovery which a court of justice could sustain. Of course, it is assumed, for all the purposes of the motion to dismiss, that the facts testified to by the plaintiff’s witnesses are true, and the plaintiff is also entitled to the benefit of all inferences to be drawn from such facts, but even under this liberal construction of the evidence there is nothing to fasten liability against the defendant. Ice carls, coal carts, ash carts, foundry, lumber and stone trucks, with their weighty loads, have the right to use public highways as freely as the pleasure wagon or the ordinary vehicles of trade. The trolley has its rights; so- have the cars propelled by steam, and the swift-going fire engine dominates the highways at a speed that attracts more than passing notice; yet the dangers from them cannot be controlled further than to require ordinary care according to the exigencies of the case, leaving the wayfarer to protect himself as best he can. It requires the exercise of care and discretion in every large city to protect one’s self from the dangers which constantly menace life and limb, and it is only when, despite such care on the part of the pedestrian, an accident happens that a remedy may be had in the courts. In the case of little children, their parents are their natural protectors, and they must to an extent keep them out of harm’s way or take the-chances of injury. Unfortunately ciicumstances compel most parents' to take these risks. When a child is too young to' appreciate and protect itself from attending dangers which beset it in thickly populated districts, the parent must have some discreet attendant in charge, or trust to good fortune rather than the law for the child’s safety. This may seem hard, but it is nevertheless the law as established in this state. The court has a plain duty to perform, and must *165execute it, however unpleasant it may seem to those interested. The complaint must be dismissed. The plaintiff will be allowed sixty days to make a case, and sixty days’ stay of execution after service of notice of entry of judgment, to enable the plaintiff to have the ruling made reviewed by the Appellate Division. If error is found, and a new trial is awarded on the ground that the questions involved are those for a jury, the plaintiff will no doubt receive thereat a substantial recovery which will compensate as far as money can for the injuries received.

Ordered accordingly.