#### Thomas Dwyer, an Infant, Etc., Appellant, *v.*Thomas J. McLaughlin, Respondent.

(City Court of New York, General Term,

May, 1900.)

Negligence — Boy six years old injured by a plank, guarding an excavation adjoining the street, which fell upon him while at play in the excavation — Negligence of all parties a question of fact.

Where a boy six years old is injured in the city of New York, becavfse, while playing tag in the day-time about an excavation adjoining a street, a plank, three by eight inches and twenty-five feet long placed on three empty barrels set on end and guarding the excavation, in some manner fell upon him while he was in the excavation, the questions whether the owner of the premises had properly guarded the excavation, as required by statute, “ so as to prevent the same from becoming dangerous to life and limb ” and also whether the boy was *sui juris,*and, if he was not, whether his parents had been negligent in letting him play unattended on the sidewalk, are questions of fact which must be submitted to the jury.

A dismissal of the complaint at the close of the evidence is improper.

Appeal from a judgment dismissing the complaint after the close of the plaintiff’s evidence.

Philip Carpenter, for appellant.

Ennever *&*Trautmann (Thomas C. Ennever, of counsel), for respondent.

O’Dwyeb, J.

The action is brought to recover damages for personal injuries received by the plaintiff, a boy six years of age, through the defendant’s negligence in so improperly maintaining the guard, consisting of a heavy plank placed on top of barrels in front of his excavation on One Hundred and Thirty-fourth street, that the plank fell upon the plaintiff, injuring him. The answer admits that at the time of the accident the defendant owned the premises and that prior to that time defendant caused to be commenced the work of making the excavation, and plaintiff is entitled to have the full benefit of those admissions without regard to *511the affirmative allegations of the answer not proved. The proof shows that the lot was about twenty-five feet wide and was excavated the whole width about eight to twelve feet deep. The excavation came to within one foot of the sidewalk flags. A plank about three inches thick, eight inches wide and twenty-five or twenty-six feet long, was placed in front of the excavation across the top of three empty barrels set on end. The plaintiff lived with his parents at 588 East One Hundred and Thirty-fourth street, and the excavation was at Ho. 608 East One Hundred and Thirty-fourth street, and had been there four or five months. The plaintiff was playing tag with a number of other boys in the neighborhood of the excavation, and with a lot of other boys jumped into the excavation. The plank that was across the barrels was thrown down on top of him and inflicted the injuries. The plaintiff had come out of school at three o’clock and went home and asked his mother for leave to go out to play and she'said all right. The statute required the defendant to properly guard and protect the excavation: “All excavations shall be properly guarded and protected so as to prevent the same from becoming dangerous to life or limb * * * by the person or persons causing the excavations to be made.” Laws of 1892, chap. 275, § 473.

The plaintiff claimed that it could not be said as matter of law that the six-vear-old plaintiff was personally negligent, nor that it was negligent as matter of law for his parents to permit him to go unattended on the sidewalk in the neighborhood of his home, and that the question of the defendant’s negligence in maintaining the guard was for- the jury to determine. In these contentions the plaintiff is sustained by ample authority. Whatever the rule would have been if the plaintiff had been an adult, this six-year-old plaintiff was entitled to have the question of his negligence submitted to the jury, and, if they found him to be *non sui juris,*then to have the question of his parents’ negligence in permitting bfm to play upon the sidewalk determined by them. Earl v. Crouch, 40 N. Y. St. Repr. 847; Crawford v. Wilson *&*B. Mfg. Co., 8 Misc. Rep. 48; Schmidt v. Cook, 12 id. 449; Mullaney v. Spence, 15 Abb. Pr. (N. S.) 319. It was competent on the evidence for the jury to find that the defendant had not properly guarded and protected this excavation. Brown v. Wittner, 43 App. Div. 135; Stewart v. Ferguson, 34 id. 515; Dorrity v. Rapp, *51272 N. Y. 307; Downey v. Low, 22 App. Div. 460; Berg v. Parsons, 156 N. Y. 109. The plaintiff or his parents cannot be held negligent as matter of law. Kunz v. City of Troy, 104 N. Y. 350; Costello v. Third Ave. Road, 161 id. 317; Birkett v. Knickerbocker Ice Co., 110 id. 504. The excavation adjoining a public highway, the plaintiff in this case (six-year-old boy) was not a trespasser. Mullaney v. Spence, 15 Abb. Pr. (N. S.) 319. We are of opinion that the facts proved in regard to the injuries and the negligence of the person who maintained the alleged guard, entitled the plaintiff to have those issues submitted to the jury. It follows that the judgment appealed from should be reversed and a new trial had, with costs to the appellant to abide the event.

Fitzsimobts, Ch. J., and Cobtlabt, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.