About six o’clock in the afternoon of June 30, 1899, James Kennedy, a boy nearly three years of age, was run over and killed by the wagon of the defendant, in Henry street, Brooklyn, about fifty feet south of DeGraw street, where there is a slightly ascending grade. The street is paved with asphalt from curb to curb. The wagon was a fruit truck and was drawn by a pair of horses. It was in the center of Henry street while crossing DeGraw, and was going at a “ fair trot; ” the driver was holding a slack line and did not pick up the lines or do anything to stop the team before the child was struck. The child had been playing on the side walk with other children, and walked out or ran out into the street, about thirty feet ahead of the team. When he had gone half way across the street, he stopped as if bewildered, was struck by one of the horses, knocked down and run over. There was also evidence that the driver swung the team away from thé child, toward the right-hand' • curb, and was four or five feet from it at the time of the accident. The driver stopped his team eight feet beyond, the accident, left the wagon, picked up the child-and took him to his mother.
It appeared that the child had been permitted by his mother to go out on the street with his sister, who was about eight years of age. There was no evidence of any kind as to the care which the older sister exercised in regard to the deceased.
The court, at the close of the plaintiff’s evidence, granted a non-suit, saying: “ The proof here is that this child was sent into the street with another person of age sui juris. There is no proof here that that other person was free from negligence, and that,-having to be affirmatively shown by the plaintiff, and not being shown, there is no cause of action made out.”
*31The plaintiff asked to go to the jury on the questions involved in the case, and excepted to the refusal to permit him to do so. We think the nonsuit was error.'
In Birkett v. Knickerbocker Ice Co. (110 N. Y. 504) a child four and a half years old was permitted to go upon the sidewalk with her six-year-old brother, and in play ran into the street, where she was run over by an ice wagon. The court said (p. 507): “ It was not unlawful for the child to be in the street, nor even for her to play upon the sidewalk. It cannot be said that it was, as matter of law, under the circumstances proved, negligence for the parents to permit her to go on to the sidewalk to play; and whether it was or not was a question for the determination of the jury. (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 3.10; Ihl v. Forty-second St., etc., R. R. Co., 47 id. 317; McGarry v. Loomis, 63 id. 104.) Hundreds of young children are permitted, with general safety, and must be permitted in cities to amuse themselves upon the sidewalks, and they cannot always be attended by persons of discretion. The highest prudence would doubtless require that they should be so guarded; but it cannot be said, as matter of law, that ordinary prudence forbids that a bright child, four and one-half years old, properly instructed and cautioned, should go unattended on to a sidewalk for diversion.”
It should be observed that in'the Birlcett case there was evidence that the child had been properly instructed and cautioned, but in Huerzeler v. C. C. T. R. R. Co. (139 N. Y. 490), where a child of five years was killed by a car of the defendant, there was no evidence upon the question of the care of the parents, and the court said (p. 494): “ It was not negligence, as matter of law, for the mother of this child to .permit her to be in the street, and so we have several times held. (McGarry v. Loomis, 63 N. Y. 104; Kunz v. City of Troy, 104 id. 344; Birkett v. Knickerbocker Ice Co., 110 id. 504.)”
In the Birkett case, at General Term (41 Hun, 404), the court said (pp. 405, 406): “ The most serious question is the contributory negligence of the deceased. Being non sui juris, she could not be charged with personal negligence, though the negligence of the parents, in suffering her to be in a place of danger, would be imputed to her. To have such negligence defeat the action, the child itself *32must "be guilty of what would be negligence in an older person. Both these elements must exist, and so the trial judge correctly charged. (McGarry v. Loomis, 63 N. Y. 107.) ” ■
Under these authorities, we think it was error to hold, as matter of law, that, either the child or its parent was guilty of contributory negligence.
It is-true that the accident did not happen on a crosswalk, but the •child had the right to be playing in the street, and being non sui jxoris, cannot be charged with its own negligence to defeat the action. ' Neither does it make any difference that there was no proof as to the conduct of the older sister, for on the authorities cited it was not negligence per se on the part of the parent to permit the child to go unattended upon the public street; and the fact that the deceased was sent out in the care of the older sister does not require any proof of any care upon her part. This' is all the more true as presumably a child of eight years is not sui juris. Many cases^ can be found where this is held. If no proof is offered, the presumption is that a child, six or eight years of age, is not mi juris. And if the sister was not sui juris, her negligence could not be imputed to the deceased.
'While the court did not base the nonsuit upon the absence of .proof of negligence of the defendant’s driver, it is proper to say that the fact that he was driving with a loose rein, at a fair trot, and could have seen the child at least thirty feet ahead of his team, and that there is no evidence that he made any attempt to stop his horses in time to avoid the child, would prevent the court from holding, as matter of law, that the driver was not negligent.
We think, therefore, that the judgment should be reversed. '
• All concurred.
Judgment reversed and new trial granted, costs to abidé the event.