The jury would have been authorized to And, upon the evidence, that the piling of the stone in the street line constituted an unlawful obstruction in the street, and was, therefore, a nuisance. (Cohen v. The Mayor, 113 N. Y. 534; Wills v. City of Brooklyn, 9 App. Div. 61.)
If the child was sui juris, which may not be affirmed as matter of law, the question of her negligence was for the jury upon the evidence. If sire was not sui juris the question arises upon the negligence of the parents. The child was seven years and four months *387■ old. The mother testified that she cautioned the child when upon the street to stay in front of the house. At the time the mother was engaged about her household duties. The child had been absent for about half an hour and the mother understood that she was at play upon the street. Under these circumstances the question whether proper care required of the mother more attention than she gave the child was for the jury to answer. The father of the child worked in the stone yard, opposite which the stone was piled, and evidence was given by the defendants which tended to establish that he was instrumental in creating the obstruction which occasioned the injury. If this fact was conceded we should have an entirely different question from that which disposes of this appeal. But this fact was not conceded. On the contrary, he testified that he had not worked at this place during the spring and winter prior to the injury. And the proof of the defendants fails to show that the father piled the stones that inflicted the injury. We are of opinion that the case presented a question of fact for the jury, and that the court erred in disposing of it as a question of law.
The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.