¶1The action was for damages to plaintiff’s intestate from the negligence of defendants’ servants. The testimony would have permitted the jury to conclude that the intestate, a child between five and six years old, was on the west side of Eldridge street, sitting on the curb with her feet in the gutter; that a wagon driven by defendants’ servant, with one horse and a heavy load, was approaching ; that on the approach of the wagon, the child ran towards the other side of the street, but was knocked down by the horse after she had gone a short distance, and received injuries from which she died.
¶2On this appeal it appears that there was no question as to that part of the case which relates to the negligence of defendants’ driver. It is insisted that there should be a reversal, because of the charge of the court that said that the child “ had a perfect right to be in the street there, and that the parents were not guilty of negligence in allowing it to be there.” The defendants made no objection to this charge, or to any part of the charge on the same subject. The defendants made two requests to charge, which were acceded to, and referred only to the child as sui juris. The defendants made at the end of plaintiff’s opening case, a motion to dismiss the complaint, on the ground under the ruling in Hartfield v. Roper, 21 Wend. 615, “ also on the ground that there is no proof of any negligence.”
¶3If Hartfield v. Roper, 21 Wend. 615, held that as a matter of law, it was negligence to be imputed to an infant non sui juris, that he was upon a highway unattended, such a view of the case was not presented to the court below. In Kunz v. City of Troy, 104 N. Y. 344, it was said that this point was passed upon as a matter of fact. After the citation by defendants’ counsel of Hartfield v. Roper, the court asked what was the *547ground, of the motion. The reply was that there was no negligence on the part of the defendants, and the plaintiff’s child was in a position where it was unreasonable to expect a child of her ago should be. It cannot bo said Avith certainty that the second branch did refer to a AArant of negligence of defendants’ driver, because he had no reason to expect that a child should be AA'here the intestate Avas at the time of the accident.
¶4If this Avere the meaning and that Avere correct, it still remained the right of the plaintiff to ask a verdict that the driver did see the child, Avhilc the latter was in peril, and might, by proper management, ha\’e prevented the accident.
¶5But if it referred to a negligence for which the intestate was responsible, it singled out one fact, that of a child betAvccn live and six years of age being in the street, unattended. Such a fact Avas not of itself decisÍAre. Rothing in the case sliorred as matter of law for the court, affirmatively, that there had been negligence on the part of the child. It may have been that at that point of the case, if it Avere assumed that the clñld Ayas non sui juris, it Avas a question Avhether the plaintiff was bound to prove affirmatively that there had been no negligence of the parents of the child. But this proposition Avas not presented to the court for decision.
¶6It is argued that although there was no decision of the point, yet there Avere several statements in the charge not objected to, that require this court to grant a neAV trial. In the charge, there Avas a full statement of the law on the rights of infants sui juris and non sui juris. The only question that could be mooted Avas whether the plaintiff, in case the infant was non sui juris, was bound to show that there Avas no negligence of the parents. This Avas at no time called to the attention of the court. If it had been, there avouM have been an opportunity for the plaintiff, in the court’s discretion, ■to give testimony on the subject.
¶7The judgment is affirmed, Avith costs.
¶8Dugkro, J., concurs.
¶9Judgment affirmed.