This is a case in which the father of a family of six children allowed the plaintiff, a child of three years and eight months, to go into the yard to play with her older sister aged nine years and nine months, and with the daughter of a neighbor, aged ten. The father lived in a tenement to which was attached a large, roomy yard shut in by a gate which was kept closed by a strong spring. On the day in question he was at home, tapping the shoes of one of the children, and his wife was nursing the baby. After going into the yard to play, the children wandered off into the street and the plaintiff was run over by a car of the defendant while she was crossing Bedford Street on her way home.
The defendant asked the presiding judge to order a verdict for it “ on the ground that there was not sufficient evidence to go to the jury of due care on the part of Katie Mellen, [the older sister] the person who the defendant claims had the plaintiff in charge at the time of the accident.” This was refused. The case was submitted to the jury under suitable instructions, to which no exception was taken and which are not set forth in the bill of exceptions.
We are of opinion that it was at least a question for the jury whether, in the first place, the father exercised due care in letting the plaintiff play in the yard, and whether, in the second place, the plaintiff was under the charge of her older sister after they left the yard and went upon the street.
Of the first question there can be no doubt. In this case the yard was closed by a gate, and in that respect differs from Cotter v. Lynn & Boston Railroad, 180 Mass. 145, and comes within Powers v. Quincy & Boston Street Railway, 163 Mass. 5. In addition, the plaintiff was put under the charge of her older sister while playing in the yard, and so the case is within cases like Mulligan v. Curtis, 100 Mass. 512, and Collins v. South Boston Railroad, 142 Mass. 301.
The father testified that when the neighbor’s daughter came in and asked the older sister to go and play, he said, “ You take Essie [the plaintiff] with you, . . . and go right in the yard and play.” When the three children left the yard, it was at least a *401question for the jury whether the plaintiff continued to be under the charge of her older sister or was in the position of a child who has got out on the street without fault on the part of its parents and whose rights depend upon the exercise by it of that care which may reasonably be expected from children of its age, as in Slattery v. O’Connell, 158 Mass. 94; Butler v. New York, New Haven, & Hartford Railroad, 177 Mass. 191; O’Brien v. Hudner, 182 Mass. 381.
Whether the plaintiff continued to be under the charge of her sister when the children left the yard depends upon this: Did the father put the plaintiff under the charge of the older sister for the afternoon, with an injunction to stay in the yard, or was she allowed to play in the yard under the charge of the older sister? It was at least a question for the jury which was the true nature of the permission that the father gave.
If the plaintiff’s rights depended on the exercise by her of the care which may reasonably be expected from a child of her age, there was evidence for the jury that the plaintiff exercised due care.
For these reasons we are of opinion that the plaintiff had a right to go to the jury on this ground, and for that reason the ruling requested was rightly refused.
Exceptions overruled.