#### Frank W. Ehrman, an Infant, by Henry Ehrman, Jr., Guardian *ad litem,*Resp’t, *v.*The Brooklyn City Railroad Company, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 11, 1891.)*

1. Negligence—Horse railroad—Children.

Plaintiff, an infant, about three and a half years old, started to cross the street from, his residence with another boy about ten years of age, and reaching the opposite side, some one called him and he started back wiili the other boy, and in so doing was struck by defendant’s car, which was coming with the horses upon a gallop, and the driver looking the other way, and sustained injuries which necessitated the amputation of his leg. The child’s parents kept a bakery, and while the mother was waiting upon a customer the child left the sidewalk to cross the street. *Held,*that there was evidence sufficient to sustain a verdict against the defendant, and that the parents were not negligent in allowing the child to go upon the sidewalk.

2. Same—Damages—Excessive—Personal injuries.

Damages to the amount of $25,000, given a child for the loss of his leg occasioned by the negligence of defendant., a horse railroad company, is not more than sufficient for so great a calamity.

Appeal by defendant from a judgment for $25,636.18 entered upon a verdict and from an order denying defendant’s motion to set aside the verdict, and for a new trial, upon the grounds mentioned in Code Giv. Pro., § 999.

*Dailey & Bell,*for *resp’t; Moore & Wallace,*for app’lt.

Dykman, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff for $25,000 in an _ action based upon negligence, and from an order denying a motion for a new trial upon the minutes'of the court

The testimony on the part of the plaintiff tended to show that he was an infant child about three years and six months old; that he started to cross the street from his residence in the city with another boy who was about ten years of age, and when he reached *991the opposite side of the street some one called him and he started hack to recross the street with the other boy; that when the plaintiff reached the track of the defendant’s road nearest his house, one of the cars came along with the horses upon a gallop, while the driver was looking the other way, and the near side horse struck the boy with his near side fore leg and knocked him down, and before the car was stopped the forward wheel had crushed the boy’s leg so that amputation became necessary, and the leg was taken off about two inches above the knee.

To establish the freedom of the parents from negligence in respect to the care of the plaintiff, the proof was that ifchey carried on a bakery with the store in the front room. Immediately previous to the accident the child was upon the sidewalk where his mother could see him, and she looked out and saw him with the older boy, and then turned to wait upon a customer, when she heard a cry of alarm and went to the door just as her child was knocked down by the horse.

Such proof was sufficient to carry the case to the jury, both upon the question of the negligence of the parents and of the driver of the car.

It is not negligent for a parent to allow children of the age of the plaintiff to go upon the sidewalk even in a city, and as the child in this case went upon the street with an older boy, without the knowledge of the parents, they cannot be charged with negligence therefor, even if the act evinced a want of care; neither can the parents be held responsible for the act of the person who called the child back, when it was in a place of safety, and thus precipitated the accident.

The testimony on the part of the defendant tended to show that the driver of the car saw the child when he started with the boy from his own door, and saw him cross the street in safety, and that then the child started back and ran into the whiffle trees and fell, and the driver stopped the car as quickly as possible.

Upon such evidence it was plainly the province of the jury to determine the questions of fact involved, and the refusal of the court to dismiss the complaint was not erroneous.

The jury solved the questions in favor of the plaintiff upon abundant testimony to support such solution, and there is no room for the interference of an appellate court

Complaint is made of the size of the verdict, but that also is a question for the jury, and we cannot say that its size evinces the presence of either passion or prejudice. The child has lost his leg and must go through life maimed, and we cannot say the verdict is more than sufficient for his compensation for so great a calamity.

The judgment and order denying the motion for a new trial should therefore be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.