#### David D. Weaver, an Infant, etc., by Charles E. Weaver, Guardian *ad litem,*Resp’t, *v.*John N. Bullis, App’lt.

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

*Filed May 11, 1891.)*

Negligence—Damages—Degree op care required op child.

Plaintiff, a boy nine years of age, came upon defendant’s farm in search of a pig. Defendant, who was mowing, requested him to go to the barn and bring a whip, which he did, and in handing it to the defendant was struck by the knives in the mowing machine and one of his legs cut off and the other terribly lacerated. *Meld,*that injury cannot be carelessly inflicted even upon a trespasser, and under any circumstances the defendant was under obligation to observe care and prudence towards the child, and that the rule respecting the degree of care required of a child of tender years, as laid down by the court of appeals in *Thurber*v. *Harlem, etc., R. R. Co.,*60 N. Y., 326, must govern.

Appeal from judgment for plaintiff entered after trial of issues by the court without a jury, in the county of Dutchess, and from-an order denying a motion for a new trial.

*Hackett & Williams,*for resp’t; *Daniel W. Guernsey,*for app’lt.

Dykman, J.

This is an action for the recovery of damages for injuries sustained by the plaintiff, a boy about nine years of age, by coming in contact, with a mowing machine belonging to the defendant, and which he was using at the time of the accident.

The boy and the defendant were the only persons who witnessed the occurrence, and they differ so radically in their statements that their testimony is entirely irreconcilable. The boy says the defendant requested him to bring him a whip, and that he did so, and that when he handed him the whip he was seated upon the machine, which was in motion, and the knives cut off one of his feet and injured the other.

The defendant says, on the contrary, he had stopped his team, dismounted from the machine, and was some distance behind it, when he heard the boy make a noise, and looked up and saw him down with his foot severed from his leg.

Then there was testimony respecting the admissions of the boy that the defendant was not upon the machine, which was disputed by the boy, and there was considerable testimony introduced on both sides from which inferences might be drawn in favor of the theories of each party.

The trial was before a judge without a jury, and he has found that the defendant so carelessly managed a mowing machine that by his neglect and carelessness the plaintiff’s leg was cut off below the knee; that the boy was as careful as could be expected of a boy of ten years of age, and that he did not by lack of prudence occasion the accident, in whole or in part

As a conclusion of law, the finding was that the plaintiff was entitled to recover a judgment against the defendant for the sum of $1,500.

From the judgment entered upon that decision and the order denying the motion for a new trial, the defendant has appealed to this court.

If the facts found by the judge are justified by the testimony, *990then his conclusion of law is sustained and the judgment must be sustained. Injury cannot be carelessly inflicted even upon a trespasser, and, under any circumstances, the defendant was under obligation to observe care and prudence towards the child, and the finding of his failure to do so has some support in the testimony and is not against the weight of the evidence. The finding of the judge stands in the place of a verdict of a jury, and must receive the same consideration, and we would not feel justified in setting aside a verdict where the testimony is so contradictory as we find it in this case.

The rule respecting the degree of care required of a child of tender years as laid down in *Honegsberger*v. *Second Avenue R. R. Co.,*1 Keyes, 574, and insisted upon by the appellant, has been repudiated by the court of appeals in the case of *Thurber*v. *Harlem, etc., R. R. Co., 60*N. Y., 826.

We discover no ground upon which an appellate tribunal can interfere for the relief of the defendant and the judgment and order should be affirmed, with costs.

Pratt, J., concurs.