#### John. B. Kunz, as Adm’r, etc., of George W. Kunz, deceased, Appl’t, *v.*The City of Troy, Resp’t.1

*(Court of Appeal*

*Filed, February 1,*1887.)

1. MUNICIPAL CORPORATION — ClTY OP TROY — DUTY TO PROTECT STREETS AGAINST NUISANCES.

*The*duty to keep *the streets in the*city of Troy *in*repair and free from obstructions, is a corporate duty resting upon the municipality, springing from the acceptance by the city of its charter, and the power of the municipal legislative body to protect the streets against nuisances, to the injury of *the*public light, or of individuals lawfully using them.

2. Same — Powers of police department are auxiliary to — Laws 1870, oh. 598, tit. 2, § 2.

The power conferred and the duties enjoined upon the police department by Laws 1870 ch. 598, tit. 2, § 2. are auxiliary and not exclusive.

3. Same — Wiiat equivalent to actual notice op the existence of a nuisance.

If the city authorities had no actual notice of a dangerous obstruction to the street, nevertheless, if their ignorance resulted from the omission of the duty of inspection, and of a degree of diligence which might reasonably be expected under all the circumstances, the opportunity of knowledge is equivalent in legal affect to actual knowledge, and the city is equally chargeable with negligence as if express notice had been actually proven.

4. Negligence — What constitutes contributory negligence in the case op an infant.

In case of an injury to an infant, a defendant whose negligence was a constituent element of the transaction, and without which the injury would not have happened, is legally responsible, notwithstanding the negligence of the infant, unless it appears that the parents or guardians were negligent in permitting the child to be brought into the situation which subjected it to the hazard and resulting injury.

5. Same — When a question for the jury.

Where an obstruction was placed upon the sidewalk of a street in a busy and frequented part of the city on Tuesday and remained there until Saturday, *Held,*that it was a question for the jury whether the city authorities charged with the care of the public streets, ought to have known of its existence, and have caused its removal.

6. Complaint dismissal of — When erroneous.

*Feld,*that in an action for damages for the death of a child resulting from the alleged negligence of the defendant where the jury would have been entitled to have found from the evidence that the father of the child left him at the door of a store to go into the store and make change, cautioning him not to go far away, and on his return from two *to*five minutes later, the accident had happened, it was error to impute negligence to the father as a matter of law.

*643Appeal from a judgment of tbe supreme court, general term third department, affirming a judgment entered upon a nonsuit, directed by the court at the Éennselaer circuit.

This action was brought against the city of Troy to recover ■damages for the death of plaintiff’s intestate, a boy about five or six years of age. The boy was killed by the falling of a counter which was standing tilted against a building in Federal street.

*E. L.*Fursman, for appellant, *R. A. Parmenter*for respondent.

1

**Reversing 36 Hun, 615.

Andrews, J.

We think the case should have been submitted to the jury. The duty to keep the streets in the city of Troy in repair and free from obstructions is a corporate duty resting upon the municipality, springing from the acceptance by the-city of its charter and the power of the municipal legislative body to protect the streets against nuisances, to the injury of the public right or of individuals lawfully using them. The charter (Laws of 1816, chap. 181, § 15 — )makesthe common council commissioners of highways within the city, and it is empowered to pass ordinances to regulate and keep in repair the streets in the city and to prevent incumbrances thereon, and it is made the duty of the mayor to cause the laws and ordinances of the city to be duly executed. Laws of 1870, chap. 598, tit. 2, § 2. By an ordinance passed in 1859, the placing of any obstruction upon any of the streets or sidewalks, interfering with the free use thereof, except when done under a license for the erection or repairing of buildings, is prohibited, and by another ordinance passed the same year, the mayor, members of the common council, and other officers mentioned, were authorized to order any obstructions placed in the streets to be removed. The city was not relieved from the duty under the charter to keep the streets from obstructions by the creation of the board of police commissioners, first established by chapter 520 of the Laws of 1870, and the duty imposed upon the police force by the twenty-third section of the act to remove nuisances from tbe public streets, assuming, as is claimed, that the board of police commissioners, as constituted, is an independent body, not subject to the control of the municipal corporation, or amenable to its jurisdiction. It is sufficient for the purposes of this case to say that the powers conferred and the duties enjoined upon the police department by the act of 1870, in respect to the streets, are auxiliary only and not exclusive. *Conrad*v. *Village of*Ithaca, 16 N. Y., 158; *Todd*v. *City of*Troy, 61 *id.*506.

The negligence, if any, on the part of the city in the present case does not arise from any affirmative act, but from an alleged omission to exercise proper care and supervision, and permitting the counter, unlawfully placed on the sidewalk by McLaughlin, to remain there after notice of the obstruction. *644The death of the plaintiffs intestate, caused by the falling of the counter, demonstrates that it was a dangerous obstruction on.the sidewalk. It is quite probable that it would not have-fallen without the agency and contact of the children who were playing about it. But such an interference might reasonably have been anticipated, and to place a large object as the counter was on a sidewalk on a frequented street, tilted in such a manner that it could be thrown down by two or three children of five or six years of age, running against or climbing upon it,, was plainly an unlawful and negligent act. The city, however, was not responsible for the original wrong. Its culpability, if any, as we have said, consists in not interfering to cause the removal of the obstruction after due notice of its existence. It is not claimed that there was any actual notice of the obstruction to the mayor, or the legislative body, or any city official, unless-notice to the patrolmen was notice to the city. It is denied that notice to members of the police force was notice to the city,, for the reason before indicated. But, aside from the fact that, the obstruction was observed by patrolmen, the counter was placed on the sidewalk on Tuesday, and remained there until Saturday, the day of the accident, and it is not claimed that-meanwhile any measures were taken by the authorities to have the obstruction removed. This lapse of time, together with the fact that Federal street was in a busy and frequented part of the city, made it, we think, under the authorities, a question for the jury whether the city authorities, charged with the care of the public streets, ought to have known of the obstruction, and to have caused its removal before the accident. If the city authorities had no actual notice, nevertheless, if their ignorance resulted from the omission of the duty of inspection, and of the degree of diligence which might reasonably be expected under all the circumstances, the opportunity of knowledge stands, for the purposes of the case, as actual knowledge, and the city is equally chargeable; as if express notice had been actually proven. *Weed*v. *Village of Ballston Spa,*76 N. Y., 329, and cases cited. It is obvious that this rule, unless carefully administered by courts and juries, may impose unjustifiable burdens upon municipal corporations. The rule requiring care on the part of municipalities in protecting and keeping safe the public streets, and which subjects such corporations to the consequences of a disregard of their statutory duties in this respect, is wholesome, and founded, we think in just principles. The danger is that courts and juries may not sufficiently take into account, in determining the question of negligence, the extent of roadways in a city under the supervision of the city authorities, the unavoidable delay often attending the action of municipal authorities, and financial and other embarrassments. Where the question of negligence in not removing an obstruction unlawfully *645placed in the street by third persons depends upon implied notice, what is a reasonable time from which notice is to be inferred must be determined upon the circumstances, giving weight to the consideration that municipal authorities cannot be expected to act with the promptness and celerity of individuals in conducting their private affairs.

The remaining question relates to the alleged negligence of the plaintiff’s intestate. The intestate was a child between five and six years of age. We understand the rule to be that, in an action for an injury founded on negligence, contributory personal negligence cannot be attributed to a child of very tender years, who from his age cannot be supposed capable of exercising judgment or discretion, although the injury would not have happened without his concurring act, and although that act, if committed by an adult, would be a negligent one. In such a case, a defendant whose negligence was a constituent ■element of the transaction, and without which the injury would not have happened, is legally responsible, notwithstanding the negligence of the infant, unless it appears that the parents or guardians were negligent in permitting the child to be brought into the situation which subjected it to the hazard and resulting injury. There is an obligation, in general, upon all persons to conduct themselves with prudence and care, and not recklessly, or even incautiously expose themselves to danger even from the negligent acts of others. But the law exacts no impossibility. It does not require an infant before reaching the age of discretion to exercise discretion. But it imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such care, and the infant is thereby brought into danger, and suffers injury from the negligent act of another, their negligence is deemed the negligence of the infant. The rule of imputable negligence operates harshly upon" tile innocent and unconscious child, but any other rule would put upon the defendant a loss for which he was only in part responsible.

In *Hartfield*v. *Roper,*21 Wend. 615, it was held, as a matter of fact, that there was no negligence on the part of the defendant, and that there was negligence on the part of the parents in permitting a child of two and a half years of age to be in the roadway. The new trial in that case was properly granted on either ground. There are some remarks in the opinion which, disconnected from the context, may be construed as sustaining the proposition that, although there was no negligence on the part of the parents, the plaintiff could not maintain the action if the conduct of the child contributed to the injury. But we understand the present doctrine on the question to be thatit is not •sufficient to defeat a recovery for an injury to a child not sm'/im's, caused by the negligence of a defendant, that the act of the *646child was one which in an adult would be deemed a negligent one contributing to this injury. There must also be concurring-negligence on the part of the parents or guardians. *Ihl*v. *Fortysecond St. R. Co.,*47 N. Y. 317; *McGarry*v. *Loomis,*63 N. Y. 104. If no such negligence is found, the doctrine of contributory negligence has no application.

In this case the child, in plajdng about the counter, was indulging a natural instinct in amusing himself, and was not guilty of legal negligence, “ although he contributed to the mischief by his own act.” Lord Denman in *Lynch*v. *Nurdin,*1 Adol. & E. (N. S.) 30. The law does not define when a child becomes *sui juris.*If there was any question whether the plaintiff’s intestate had sufficient discretion to understand the danger of the situation, it should have been left to the jury, with proper-instructions as to the degree of care exacted of a child of tender years, under the circumstances. *Mangam*v. *Brooklyn R.*Co., 38 N. Y. 455; *McGovern v. New York Cent. & H. R. R. Co.,*67 N. Y. 417*; Byrne*v. *Same;*83 N. Y. 620; *Dowling*v. *Same,*90 N. Y. 670; *Railroad Co.*v. *Stout,*17 Wall 657.

It is insisted, however, that the father of the intestate was chargeable with negligence in permitting the child to be on the sidewalk unattended. It has been held that it, is not *per se*wrongful or negligent to permit children to play in the street. *McGarry*v. *Loomis, supra; McGuire*v. *Spence,*91 N. Y. 303.

It may or may not be negligence, depending upon circumstances. It was, we think, for the jury to determine whether the father of the intestate was guilty of negligence. The plaintiff is entitled to the most'favorable inference deducible from the evidence, and, in reviewing the nonsuit, all contested questions of fact are to be deemed established in his favor. The jury would have been entitled to have found from the evidence that the father left the child at the door of the store, to go into the store to make change, cautioning the boy not to go far away, and on his return, from two tó five minutes later, the accident had happened. It would be, we think, too strict a rule to impute negligence to the father, as a matter of law, under such circumstances. See *Cosgrove*v. *Ogden,*49 N. Y. 255.

We think the court erred in directing a nonsuit, and that the judgment should be reversed, and a new trial granted.

All concur.