This action was brought to recover the damages sustained by the next of kin by reason of the negligent killing of the plaintiff's intestate. The decedent was an infant of the age of six years and three months. She undertook to cross St. Joseph street, in the city of Rochester, and in doing so was run over by one of the defendant's electric cars and killed.
In submitting the case to the jury the court, in the first instance, delivered a charge with which we find no fault, but afterwards plaintiff's counsel asked for the further charge "That if the jury find that the child was non sui juris then any negligence of the child cannot be considered." This request was charged, and, we think, properly; but instead of resting at this point the court proceeded to comment further, stating "If they find that she was non sui juris. I tried to explain that where a child was so young as not to realize the dangerous condition it might be in, in crossing the street *Page 148 railroad track when the cars were approaching, then it could not be charged with negligence, and the question would arise in that case whether the parents were negligent in allowing the child to go upon the street. But I might say in connection with this case, gentlemen, if you should find that the child was so young as to be what we term non sui juris and the parents were negligent in allowing the child to go to school unattended, but if you alsofind that there was no negligence on the part of the child at thetime the accident occurred, then it makes no difference hownegligent the parents may have been, the company would be liable providing the motorman was negligent." The defendant's counsel excepted to the part of the charge italicised. We think the charge in this particular was erroneous. As we have seen, the court had just instructed the jury that if the child was non suijuris then it could not be considered negligent; and then, if the jury found that there was no negligence on the part of the child it made no difference how negligent the parents may have been. The jury was thus permitted to find that the decedent wasnon sui juris, and for that reason not negligent, and at the same time that it made no difference whether the parents were negligent or not. It is quite possible that the trial judge did not intend to be so understood, but the jury might have so understood him and made that understanding the basis of their verdict. By giving to the words of the charge their ordinary meaning that construction would be quite liable to be adopted by the non-professional mind.
For this reason the judgment should be reversed and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., GRAY, O'BRIEN, LANDON, CULLEN and WERNER, JJ., concur.
Judgment reversed, etc. *Page 149