The instructions given to the jury at the trial were, in almost every particular, correct, and in conformity with the rules of law as settled in this commonwealth. The plaintiff is the administrator of an infant who was of such tender age as to be incapable of taking care of himself; and the action is for personal injury received by means of the negligence of the defendants in running their horse cars through a public street. In such a case it has been held in England that the plaintiff, although bound to show that the negligence of the defendants was the sole cause of the injury, and that his own negligence did not, in any particular, contribute to it, is still not required to prove any higher degree of care on his own part than could reasonably be expected from such a person. The leading case is Lynch v. Nurdin, 1 Q,. B. 29; and although the case was questioned in Lygo v. Newbold, 9 Exch. 302, it has generally been followed as an authority. Where the right of the infant to sue is derived from a contract made on his behalf by an adult *287having charge of him, a different rule has been adopted in the recent case of Waite v. North Eastern Railway, El., Bl. & El. 719.
The doctrine of Lynch v. Nurdin has been followed by the courts of Vermont, Connecticut and Pennsylvania. Robinson v. Cone, 22 Verm. 213. Daley v. Norwich & Worcester R. R. 26 Conn. 591. Rauch v. Lloyd, 31 Penn. State R. 358. But in this commonwealth and in New York it has been held that, in the case of a young child, the negligence of a- parent, or other person to whose care the child is intrusted, has the same effect in preventing the maintenance of an action for an injury occasioned by the negligence of another that his own want of due care would have, if the plaintiff were an adult. Holly v. Boston Gas Light Co. 8 Gray, 123. Hartfield v. Roper, 21 Wend. 615. Lehman v. Brooklyn, 29 Barb. 236.
The instructions of the court to the jury upon this point in the case at bar were given with great accuracy; and what it was incumbent upon the plaintiff to prove, and the rule as to the burden of proof, were stated with care and exactness. But upon another part of the case we find greater difficulty. The defendant’s counsel asked the court to instruct the jury “ that it would be negligence to permit a child of the age of this child to go on a public street, like Sudbury Street, unattended.” The presiding judge did not give this instruction; but said to the jury substantially as follows: “ There is a sense in which I may properly use the language of the request. If the parents, knowing the position of the child and its danger, had the means of preventing the injury and neglected to use them and permitted the child to remain in danger, the plaintiff cannot recover ; but I understand the defendants’ counsel to desire me to rule that the mere fact that the child was passing across the street unattended is, in and of itself, necessarily such a want of due care, or such a fault, as to prevent recovery by the plaintiff. I cannot so rule. It is not necessarily, in and of itself, such evidence of fault or neglect as entitles the defendants to a verdict.”
We fear that this statement of the law by the learned judge *288must have given an erroneous impression to the jury, as well by what it omitted, as by what it directly expressed.
In the sense in which he understood the defendants’ request, the instructions asked should certainly not have been given. Cases may undoubtedly be supposed in which the child might have been upon the street, and have been “ permitted ” to be there unattended, without fault or negligence on the part of his parents, or those having him in charge. The house might have been on fire, and the child might have been put into the street; or his parents might have been disabled by accident or disease, and the child have been sent into the street, as the best alternative for his own safety and preservation. A person having charge of him in the street might have fallen senseless, or met with some injury, which left the child, to stray away unattended. True, there is nothing in the report of the evidence, so far as it is contained in the bill of exceptions, to show that any such state of facts was before the jury ; but we cannot presume that all the evidence is reported, and the possibility that such things might occur is enough to show that the instruction asked was too broad. But the court proceeded to state the sense in which the instruction might properly be given; and, in doing this, gave to the jury a definition of what would constitute negligence in the parents, which seems to us much too limited and defective. The jury might well infer from the language of the court that it was only when the parents knew the position of the child in the street and its actual danger, and had the means of preventing the injury and neglected to use them and permitted the child to remain in danger, that they were justly chargeable with neglect. This would lead their minds wholly from the consideration whether the parents had used reasonable and proper care to prevent the infant from going into the street at all; a question of scarcely less importance, and which may have deserved serious attention. The prayer for instructions rendered it highly proper that some ruling should be given as to what would constitute negligence in the parents, sufficient to defeat the action ; and the statement made did not cover the whole field of inquiry, and might mislead the jury. But the direction which followed *289went further. The jury were told that the mere fact that the child was passing across the street unattended was not necessarily, in and of itself, such evidence of fault or neglect as entitled the defendants to a verdict. In this opinion we cannot concur. We think the fact that a child of two years old is passing unattended across a public street, in a city, traversed by a horse railroad is, “ in and of itself, necessarily,” prima facie evidence of neglect in those who have it in charge. It is a fact open to explanation, and not conclusive. But in and of itself, standing alone, unexplained and unaccounted for, it is sufficient to authorize a jury to find that the child was not properly taken care of, and to entitle the defendants to a verdict.
The jury were rightly instructed that the burden of proof was on the plaintiff to show that a want of care on the part of his parents did not contribute to produce the injury. We cannot regard evidence that he was in the street unattended, and was run over by the cars, as having any tendency to show that proper care of him was exercised, but the contrary. He was incapable of taking care of himself, and he was entitled to the care of others; and this does not show that he received it. There is nothing in the mere fact of his dangerous situation to show that it was necessary or proper, or occasioned by anything else than neglect.
It has been decided by the supreme court of Vermont that the question of negligence is a mixed question of law and fact; and that it is the duty of a judge to instruct the jury what will constitute negligence. Trow v. Vermont Central Railroad, 24 Verm. 487. Briggs v. Taylor, 28 Verm. 180. And in several recent cases in this court it has been held, that where a plaintiff who seeks to recover compensation for an injury occasioned by the carelessness of another offers no evidence that he was himself in the exercise of care, but, on the contrary, the whole evidence on which his case rests shows that he was careless, the court may rightfully instruct the jury as a matter of law that the action cannot be maintained. Lucas v. New Bedford & Taunton Railroad, 6 Gray, 64. Gilman v. Deerfield, 16 Gray, Gavett v. Manchester & Lawrence Railroad, 16 Gray, Gah*290agan v. Boston & Lowell Railroad, 1 Allen, 187. Todd v. Old Colony & Fall River Railroad, 3 Allen, 21.
2. The exception taken to the admission in evidence of the city ordinance, regulating the rate of speed of the defendants’ cars, cannot be maintained. All persons travelling in the street would have a right to expect the ordinance to be observed and to govern themselves accordingly. It would have a direct bearing upon the question of the use of due care by the defendants, if they used a rate of speed prohibited by the ordinance, and this improper rate of speed contributed to produce the accident. Exceptions sustained.