FOURTH DEPARTMENT, DECEMBER TERM, 1896. [Vol. 12. carelessly used in such cases. A plaintiff who is sui juris is not allowed to recover, for his own benefit, damages caused by the concurrent negligence of himself and of the defendant, no matter whether the person injured is the plaintiff, his wife, his child, or his servant. It has been said, though, perhaps, not well settled, that in case an infant is killed by the concurrent negligence of the defendant and of a person who subsequently becomes a plaintiff as administrator of the infant, if the whole recovery is to be distributed to the negligent plaintiff, the case falls within the class above referred to. The case at bar falls within the class of cases brought by infants for their own benefit, which class is divided into two subdivisions: (1) Those where the non sui juris person is guilty of conduct which in a person sui juris would be negligent; (2) cases where a person having the legal custody of another who is non sui juris has negligently placed, or permitted the latter to be, in a position by which an injury is sustained. Under the rule in this State a recovery is allowed in the cases embraced within the first subdivision, as the negligence of a person who is non sui juris is usually not a defense. The case in hand falls within the second subdivision, and is governed by the rules laid down in the class of cases to which it belongs. The leading English case on this subject is Waite v. North Eastern Railway Company (El., Bl. & El. 719, 728). In that case the plaintiff, an infant five years of age, accompanied its grandmother to defendant's station, where she bought tickets for both entitling them to travel on the road. To reach the train on which they intended to ride it was necessary to cross defendant's tracks passing in front of the station, and while crossing, the child was injured by a passing train. Two questions were submitted to the jury: (1) Was the defendant negligent? (2) was the grandmother guilty` of contributory negligence? Both questions were answered in the affirmative, and the learned trial judge directed a verdict for the plaintiff, which was subsequently set aside in the Queen's Bench (El., Bl. & El. 719), which decision was affirmed in the Exchequer Chamber (El., Bl. & El. 728). In Hartfield v. Roper (21 Wend. 615) a child of two years of age App. Div.] FOURTH DEPARTMENT, DECEMBER TERM, 1896. was permitted by its parents to be in a public highway, where it was run over and injured by a traveler. The action was brought by the child to recover damages for its injury, and it was held that the negligence of the parents contributed to the accident, and that their negligence was imputable to the child. At the Circuit a verdict was recovered for the plaintiff, which was set aside and a new trial granted, on the ground that it was clearly established that the negligence of the parents contributed to the accident. This case has never been overruled in this State. Cosgrove v. Ogden (49 N. Y. 255) was brought by an infant six years of age, who was injured while unattended in the streets of New York. Whether the parents were negligent in permitting the child to be in the streets unattended was submitted to the jury and a verdict rendered for the plaintiff, which was affirmed, the court assuming that, had the parents been guilty of contributory negligence, their negligence would have been imputable to the plaintiff. Morrison v. Erie Railway Co. (56 N. Y. 302) was brought by an infant twelve years of age, to recover damages sustained while being carried from a moving train by her father, on which both were passengers. The defendant was negligent in not keeping its train at the station long enough for passengers to alight. It was held that the contributory negligence of the father was imputable to the plaintiff. Bahrenburgh v. Brooklyn, C., H. P. & P. P. R. R. Co. (56 N. Y. 652) was brought by an infant about four years of age, to recover damages sustained by a collision with defendant's car while riding with a young man twenty years of age, without the consent of its parents. The plaintiff and his sister, six years of age, went into the street without the consent of their parents, and caught a ride with a delivery clerk of the father. It was held that permitting the plaintiff to go on the street accompanied by his sister, if negligent, was not the proximate cause of the accident, and that, "as at the time of the accident plaintiff was in the care of a person of suitable age, that it was not negligence, as matter of law, on the part of the latter, to allow the boy to ride upon the seat, where and as he did; that was a question for the jury, and their decision is conclusive here." This case was tried in the City Court of Brooklyn, and an APP. DIV.-VOL. XII. 20 FOURTH DEPARTMENT, DECEMBER TERM, 1896. [Vol. 12. examination of the record shows that the court instructed the jury as follows: "But there still remains a question for you to pass upon -whether the accident resulted from the negligence of the person in whose charge the child was at the time; because, if it did, the negligence of that person is practically the negligence of the child of the plaintiff in this case, and the defendants are relieved from any responsibility." Thus it appears that whether the driver, by his negligence, contributed to the accident was submitted to the jury and found for the plaintiff. Had a like course been pursued on the trial of the case at bar this question would not now have been under review. This case, cited by the plaintiff, does not sustain his contention. Doran v. The City of Troy (22 Wkly. Dig. 230) was brought by an infant four years of age, who was injured while riding with its father, to recover damages for injuries caused, it was alleged, by the negligence of the defendant. It was held that it was conclusively shown that the father, by his negligence, contributed to the accident; that his negligence was imputable to the plaintiff, and the judgment recovered at Circuit was reversed by the General Term, and its order was affirmed by the Court of Appeals. (104 N. Y. 684.) Fallon v. Central Park, N. & E. R. R. R. Co. (64 N. Y. 13) was brought by an infant, five years of age, to recover damages for personal injuries sustained while in the street. It was urged as a defense that the parents, by their neglect, contributed to the accident. The court instructed the jury: "I leave it to you to say whether, under all the circumstances, it was negligence on the part of the plaintiff's parents to do as they did; and if you come to the conclusion it was, then your verdict should be for the defendants." The plaintiff had a verdict which was affirmed by the General Term and by the Court of Appeals. It is assumed, in the opinion of the Court of Appeals, that the negligence of the parents, had there been any, would have been imputable to the child and a defense to the action. The court said: "I think that the charge of the judge at Circuit, upon the question of negligence of both child and mother, was strictly accurate, and the rulings upon the requests to charge were in conformity with the charge." Weil v. D. D., E. B. & B. R. R. Co. (119 N. Y. 147) was App. Div.] FOURTH DEPARTMENT, DECEMBER TERM, 1896. brought by an infant two years of age to recover for an injury caused by being run over by one of defendant's cars in the city of New York. A nonsuit was granted on the ground that, as a matter of law, the father was negligent in permitting the child to be in the street. The judgment was affirmed at General Term (25 J. & S. 188), but was reversed by the Court of Appeals on the ground that whether the parents were negligent was a question of fact for the jury. Kenyon v. N. Y. C. & II. R. R. R. Co. (5 Hun, 479) was brought by an infant of less than three years of age, and was defended upon the ground, among others, that his parents negligently contributed to the accident by permitting the child to be in the streets of the city of Utica. It was held that the negligence of the parents was not imputable to the child and did not disentitle it to recover. This case was retried, and on the second trial the defendant asked for the following instruction: "I ask the court to charge the jury that if, from the evidence, the jury believe that the parents of the child were guilty of negligence in letting it go at large without protection, and that that negligence contributed in any degree to the producing of the injury, then the plaintiff is not entitled to recover; that I ask as a matter of fact." This request was refused and the plaintiff had a verdict on which a judgment was entered, which was affirmed at General Term in December, 1876 (not reported), but the judgment was reversed by the Court of Appeals November 12, 1878 (18 Alb. L. J. 400), because the foregoing request was refused. Subsequently the plaintiff moved for a reargument on the ground that the refusal to give the instruction was not excepted to, which motion was granted (18 Alb. L. J. 480), and on the reargument the court declined to amend the record by inserting an exception and affirmed the judgment. (76 N. Y. 607.) Hennessey v. Brooklyn City R. R. Co. (6 App. Div. 206) was brought by an infant less than two years of age, who was riding in the lap of his mother, the father driving the carriage, to recover damages sustained by a collision with defendant's train. It was alleged that the negligence of the father contributed to the accident. Several of the cases herein cited were reviewed, and it was said that it is well settled in this State that, in case of an injury to an infant FOURTH DEPARTMENT, DECEMBER TERM, 1896. [Vol. 12. who is non sui juris, the negligence of his custodian, whether parents or persons to whose care the child has been committed, if the negligence contributes to the accident, is to be imputed to the child, but the judgment for the plaintiff was sustained upon the narrow ground that the child was in the immediate care of its mother, and that her negligence only, and not that of the father, was to be imputed to the child. This case does not sustain the plaintiff's contention, but the contention of the defendant, which insists that the negligence of the Schoenthalers, if any, is imputable to the plaintiff in the case at bar. Section 1902 of the Code of Civil Procedure gives, and the statute from which the section was taken gave, a right of action to the representatives of a deceased person to recover damages for a death occasioned by a negligent act of a defendant, in case the injured person could have maintained an action if death had not ensued. Under the statute and under the Code, actions brought by the representatives of persons who were non sui juris at the time of injury, stand, with perhaps the single exception herein before referred to, upon the same principle, the same principle, so far as imputable negligence is concerned, as actions brought by persons who are non sui juris. Ihl v. The Forty-second Street R. R. Co. (47 N. Y. 317) was an action brought by the administrator of a child three years of age, which was killed while crossing defendant's track, attended by a child nine and one-half years of age. The defendant requested the court to charge that it was negligence, as a matter of law, for the parent to permit the child to cross the street attended as it was, which was refused. The jury found that the mother was not negligent in permitting the child to cross the street attended by its sister, and that the sister was not negligent. The case of Hartfield v. Roper (supra) was cited and approved, and it was assumed that the negligence of the mother, and the negligence of the attendant, had there been negligence, would have been imputable to the infant, if the negligence of either had contributed to the accident. Kunz v. The City of Troy (104 N. Y. 344) was brought by the administrator of a child between five and six years of age to recover damages for its death, occasioned by the negligence of the defendant. It was alleged as a defense that the father was negligent in permitting the child to go into the street, and that his negligence |