brought by or for the benefit of the parent. 20 R. C. L. 155. A different view, however, as to the imputability to the child of the negligence of its parents, prevails in some jurisdictions, and in those jurisdictions the present question may be presented, either in an action by or for the benefit of the parent, or in an action by or for the benefit of the child.

The controlling circumstances entering into the determination of the question being numerous, such as age, health of the child, position in society of the parents, amount of traffic on the street, knowledge by the parents of the presence of the child in the street, and precautions taken by them for the safeguarding of the child, it is impossible to lay down any general substantive rule whereby it can be determined when there is, and when there is not, negligence. Hence the great majority of the cases are left to the jury to decide.

II. Unexplained presence of child in street as presumptive evidence of negligence.

Massachusetts recognizes the rule that in some cases the mere presence of a young child upon a public street unattended creates a presumption of negligence.

Thus, the presence of a twentymonths-old child on the public street unattended was held to be prima facie evidence of negligence on the part of its mother, in Grant v. Fitchburg (1893) 160 Mass. 16, 39 Am. St. Rep. 449, 35 N. E. 84. And the same was held in regard to a nineteen-monthsold child in Gibbons v. Williams (1883) 135 Mass. 333; and in regard to a two-year-old child crossing a public street in a city, in Wright v. Malden & M. R. Co. (1862) (4 Allen) (Mass.) 283.

In Marsland v. Murray (1888) 148 Mass. 91, 12 Am. St. Rep. 520, 18 N. E. 680, the court said that the fact that a very young child is upon a muchused highway in a city, unattended, is prima facie evidence of negligence on the part of the person in charge, but it does not appear whether it was considered that the child involved in the

case, a child between four and five years of age, came within the "very young" class or not.

In Sullivan v. Chadwick (1920) 236 Mass. 130, 127 N. E. 632, the above rule was recognized by the court saying that "the prima facie evidence of negligence of parents, which has been said in many cases to arise from the presence of a young child upon a busy street," had not been met at all by the explanatory evidence in the case.

But in Slattery v. Lawrence Ice Co. (1906) 190 Mass. 79, 76 N. E. 459, 19 Am. Neg. Rep. 298, it was held that when a child has reached the age of six years it cannot be said that negligence can be conclusively imputed to her custodians for allowing her to go into the street unattended.

The New York cases leave it in some doubt as to what the rule in that state is in regard to the presence of a child. unattended, in a street, constituting negligence or not, but it would seem that there is a leaning towards the rule that such presence of a child in a street, even with the permission of its parents or guardians, does not constitute a presumption of negligence on the part of parent or guardian.

In Hartfield v. Roper (1839) 21 Wend. (N. Y.) 615, 34 Am. Dec. 273, 12 Am. Neg. Cas. 293, one of the earliest and leading cases dealing with injuries received by young children unattended in a street, a child about two years of age, while in the beaten path of a public street, was run over by the driver of a sleigh, who failed to see it there. Although the case, often cited as it is, is cited in practically every instance in support of the rule which imputes to the child any negligence of which the parents may have been guilty on account of the presence of the child in the street unattended, the following language of the court would seem to indicate that it was of the opinion that the presence of a young child in a street unattended constituted negligence, irrespective of the circumstances: "A snow path in the public highway is among the last places in this country to which such a small child should be allowed to resort, unattended by anyone of suitable

age and discretion.

The custody of such a child is confided by law to its parents, or to others standing in their place; and it is absurd to imagine that it could be exposed in the road, as this child was, without gross carelessness." This case was cited, however, in Mangam v. Brooklyn R. Co. (1868) 38 N. Y. 455, 98 Am. Dec. 66, in support of the rule that there is no negligence in a young child being unattended in a street, unless the parents are guilty of an omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case, the court pointing out that in the Hartfield Case it was said that the law has placed infants in the hands of vigilant and generally affectionate keepers, their own parents, and if there be any legal responsibility for damages it lies on them, and explained that surely an infant could not recover against his parents for negligence in permitting him to escape into the street unless he could show some omission of ordinary care. In Regan v. International R. Co. (1923) 205 App. Div. 425, 199 N. Y. Supp. 601, and Barry v. Second Ave. R. Co. (1891) 41 N. Y. S. R. 342, 16 N. Y. Supp. 518, affirmed in (1893) 136 N. Y. 669, 33 N. E. 336, infra, the courts referred to the Hartfield Case as laying down the rule that a parent who permits, either expressly or otherwise, a child non sui juris to play in the street, is guilty of negligence as a matter of law, and cited authorities as showing that it had been condemned as harsh, and had been modified; but an examination of such authorities will reveal that they referred to the rule enunciated in such case, which imputes to the child the negligence of its parents. There were no extenuating circumstances shown in the Hartfield Case, explaining the presence of the child in the street; therefore, it is doubtful whether the case was meant to lay down the rule which the court in the Regan Case would draw from it.

In Lehman v. Brooklyn (1859) 29 Barb. (N. Y.) 234, where a child aged four years and one month was drowned by falling into a well in the street, in

granting a new trial after a verdict in favor of the child's father, the court cited the Hartfield Case in support of the proposition that it constituted negligence for the parents of a young child to permit it to be in the street alone, and, by its statement that the evidence "did not show how the child came there; whether sent by its parents or straying away of its own will," it is quite evident that the court did not consider that the rule was that the mere unexplained presence of a young child in the street would constitute negligence.

In Ryczko v. Klenotich (1923) 204 App. Div. 693, 198 N. Y. Supp. 473, it was held that it was not negligence per se on the part of a parent to permit a child non sui juris to play in the street.

And the temporary presence in the street of a child four and a half years of age was held not sufficient to attribute negligence per se to his parents or custodian, in Dehmann v. Beck (1901) 61 App. Div. 505, 70 N. Y. Supp. 29.

In Barry v. Second Ave. R. Co. (1891) 41 N. Y. S. R. 342, 16 N. Y. Supp. 518, affirmed in (1893) 136 N. Y. 669, 33 N. E. 336, it was held that, since the question of the parents' negligence in permitting a child four years of age to be in the street unattended was, under the circumstances of the case, one for the jury, there was no error in the court's refusal to charge that the mere fact of the presence of the child in the street, unattended, was prima facie evidence that he was exposed to danger through the negligence of his parents.

The rule in Pennsylvania is, as announced in the reported case (DATTOLA V. BURT BROS. ante, 205), that the mere presence of a young child, without more, does not raise a presumption of negligence on the part of its parents or custodians. But several cases have held that for parents or custodians knowingly to allow a young child to go unattended upon a public street will constitute negligence.

Thus, in Glassey v. Hestonville, M. & F. Pass. R. Co. (1868) 57 Pa. 172, an instruction that knowingly to allow

a child of less than four years of age to go at large in a public street without a protector is negligence was held correct.

And in Philadelphia & R. R. Co. v. Long (1874) 75 Pa. 265, in affirming a charge of the lower court, in which the judge had said that "the fact that the child [two years and two months old] is found in the street affords a strong presumption of negligence on the part of the plaintiffs," the court clearly shows that it approved of the charge only because it considered that, taken as a whole, it amounted to saying that knowingly to allow such a child to be upon the street constitutes negligence.

In Reinike v. Philadelphia Traction Co. (1893) 13 Pa. Co. Ct. 229, 2 Pa. Dist. R. 319, 31 W. N. C. 471, it was held that an instruction that it was negligence per se to permit a child nineteen months of age to be alone upon a busy street traversed by street cars was properly refused. In reply to the contention that the Glassey Case (Pa.) supra, supported such charge, the court said: "The court was asked [in the Glassey Case] to charge that knowingly to allow a child of four years of age to go upon the public street without a protector was concurrent negligence on the part of the parent, and that the fact that such a child was found alone was presumptive evidence that he was so exposed. It was decided that the court ought to have affirmed the points. These points involved the theory of an entire lack of care on the part of the parent, and the case differs from the present in the fact that here there was at least some evidence of watchfulness and attention exercised by the mother." As to the evidence referred to by the court, see this case infra, IV. And to the same effect is Pittsburg, A. & M. R. Co. v. Pearson (1872) 72 Pa. 169, infra, IV. The court in the Reinike Case further said: "Parents are required to see that their children of tender years, when they are on the streets, are properly guarded and protected, so that they do not needlessly run into dangers incident to modern methods of transportation. Whether

such care has been given to them is a question of fact to be determined by the jury. No case has yet, in this state, gone to the length of deciding that for a child to be upon the street is negligence per se on the part of the parent."

In the light of the above decisions, the statement in Del Rossi v. Cooney (1904) 208 Pa. 233, 57 Atl. 514, infra, IV., that "whether the plaintiff rebutted the presumption of negligence arising from the fact that the child [four years old] was on the street alone at the time of the accident was, we think, a question for the jury," cannot be given the effect of holding that the presence of a child between three and four years of age, without a caretaker, on a street traversed by a trolley line, would raise a presumption of negligence on the part of the parents, which the court in Parrotta v. Pennsylvania & M. Valley R. Co. (1909) 40 Pa. Super. Ct. 138, infra, IV., attributes to it.

In Lafayette & I. R. Co. v. Huffman (1867) 28 Ind. 287, the court said, in passing on a demurrer to the complaint: "That the plaintiff, a child under the age of five years, was, by accident, playing near and on said track, at a point near his home,' is, unexplained, an admission of negligence on the part of those having the custody of his person; and, to render the defendant liable, its conduct must have been so negligent as to amount to a willingness to inflict the injury." Although it did not appear clearly where the tracks referred to were located, it would seem that they were at a street crossing.

In Grant v. Bangor R. & E. Co. (1912) 109 Me. 133, 83 Atl. 121, a case involving a child aged five years and three months, the court recognized the rule that the mere presence of a child unattended in a street is prima facie evidence of negligence on the part of the parents, and said that, however young the child might be, it was not conclusive.

In Feldman v. Detroit United R. Co. (1910) 162 Mich. 486, 127 N. W. 687, it was held that the fact that a child four years of age was upon the city

street, unattended, where it was killed by a street car, established prima facie the negligence of its parents.

The unexplained presence of a young child upon a railroad crossing is prima facie evidence of negligence on the parents' part. Harrington v. Butte, A. & P. R. Co. (1908) 37 Mont. 169, 16 L.R.A. (N.S.) 395, 95 Pac. 8.

In Dan v. Citizens' Street R. Co. (1897) 99 Tenn. 88, 41 S. W. 339, it was held that a charge that parents were negligent if they "thoughtlessly or carelessly permitted" a child four years of age to wander at large was incorrect, as it should have read "knowingly allowed" a child, etc.

In Riley v. Salt Lake Rapid Transit Co. (1894) 10 Utah, 428, 37 Pac. 681, where the plaintiff sued for the death of his seven-year-old unattended boy, which was caused by an electric street car, there being no evidence showing, or tending to show, how the child came into the street, the court held that it was not negligence per se for the boy's parents to allow him to be upon the public street.

Where a child four and one-half years of age was injured in a street which did not appear from the evidence to be other than a residential and rarely used street, it was held that a charge that the presence of the child in the street unattended was prima facie evidence of negligence on the part of the parents was properly refused. Decker v. McSorley (1901) 111 Wis. 91, 86 N. W. 554.

III. Conditions

making question of negligence one for the court.

a. Constituting negligence. It has been held in quite few cases that the uncontradicted evidence, in regard to the presence of a young child in a street, was such as admitted of but one conclusion on the question of the negligence of the parent or custodian, and therefore that the court would decide the question of fact as a matter of law. Thus, in the following cases the parents or custodians have been held guilty of negligence as a matter of law:

Where a child, five years of age, and living on a street traversed by a rail

road, having been allowed by its mother to cross to the other side of the street, as he was in the habit of doing, in order to meet or wait for his father, who would be coming that way for his meals, was injured by a train, it was held that the parents were guilty of negligence in allowing the child to be thus exposed to danger. Jeffersonville, M. & I. R. Co. v. Bowen (1872) 40 Ind. 545, followed on later appeal in (1874) 49 Ind. 154.

Where a mother allowed her three small children to go out on the street to meet their father, who would be coming from work in about fifty minutes, knowing that the street was crowded with vehicles of different kinds about that time of the day, it was held by the court, in an action to recover for injuries to one. of the children, three years of age, received in the street, that an instruction by the court that the mother was negligent in allowing the child to be in the street was correct. Casey v. Smith (1890) 152 Mass. 294, 9 L.R.A. 259, 23 Am. St. Rep. 842, 25 N. E. 734.

And where a mother last saw her twenty-months-old child at the open gate of the yard of her home, which was on a public street, about fifteen minutes before it was killed in a catch basin in the street, during which time she had made no attempt to ascertain its whereabouts, and it was shown that the child had previously wandered off to the third house down the street that afternoon, it was held by the court that the mother was guilty of negligence in allowing the child to go into the street. Grant v. Fitchburg (1893) 160 Mass. 16, 39 Am. St. Rep. 449, 35 N. E. 84.

Where a child two years and five months of age was permitted by her aunt, in whose charge she was, to go with the aunt's seven-year-old daughter to a playground, knowing that they I would have to cross a railroad crossing on the way, the question of the aunt's negligence was held to have been properly left to the jury. But it was also held that an instruction that there was no evidence that the persons in charge of the child were in the exercise of due care should have been

given, it appearing that the older child became engrossed in play at the playground, and permitted her charge to wander to the crossing, where she was killed by a train. Marchant v. Boston & M. R. Co. (1917) 228 Mass. 472, 117 N. E. 842, 18 N. C. C. A. 315.

cars

Where a boy aged three years and nine months was permitted to roam at will for two or three hours before he was injured by an automobile, and it was shown that he lived on a busy main street where possibly a hundred automobiles and many street passed an hour, although it appeared that he was bright and careful in his habits about crossing streets, the court held that the parents were negligent in allowing the child to be upon the street unattended. Sullivan v. Chadwick (1920) 236 Mass. 130, 127 N. E. 632.

So, where a child three years and ten months of age was left in the care of its mother, who was not very strong, and she allowed it to play in the front yard of their home, which was on a busy street wherein there was a street car line, the gate to the yard being always open, and the evidence showed that the last she saw of the child before it was injured in the street by a street car was about an hour before, when she looked out of the window and sent the only other child in the yard on an errand, it was held as a matter of law that the parents were negligent in allowing the child to get into the street. The court pointed out that the cases wherein such questions were left to the jury were cases where "the precautions taken were greater, or the danger was less obvious and not so great, and the time shorter during which the child was left to itself." Cotter v. Lynn & B. R. Co. (1901) 180 Mass. 145, 91 Am. St. Rep. 267, 61 N. E. 818.

In Callahan V. Bean (1864) 9 Allen (Mass.) 401, in sustaining a directed verdict for the defendant, it was held that the father of a child aged two years and four months was negligent in sending it across a public street alone, without watching it after it started, although he looked up and down the street beforehand and

saw nothing dangerous in sight, and although the child had crossed the street alone on previous occasions.

In Harrington v. Butte, A. & P. R. Co. (1908) 37 Mont. 169, 16 L.R.A. (N.S.) 395, 95 Pac. 8, it was held that the presumption of negligence arising from the presence, unattended, of a boy five years and eight months of age upon a railroad crossing, was not overcome by general statements of the parents that they always tried to keep their children at home, always exercised care in looking after their children, and thought the boy was in the yard.

In Albert v. Albany R. Co. (1896) 5 App. Div. 544, 39 N. Y. Supp. 430, affirmed in (1898) 154 N. Y. 780, 49 N. E. 1093, it was held that a finding of a jury that the mother was not guilty of negligence in allowing a child. three years and four months of age to be in the street, where it was killed by a street car, was not supported by the evidence, where it appeared that the mother had sent the child, in company with its five-year-old sister, to a shoe shop on a street two blocks away, knowing that they would have to cross the street car tracks on such street, and after cautioning them to be careful in doing so. The court explained the decision as follows: "We place this decision upon the ground that the mother sent this child, without protection, into a locality known to her to be an exceedingly dangerous one, and where the child would be very liable to meet with the very accident that did occur. No case, to our knowledge, has sustained, or allowed a jury to sustain, such conduct on the part of a parent; nor are we inclined to do it in this case."

Where a child three years and four months of age walked out of the house, telling her mother that she wanted "to look at the music store and see what is there," the music store being to the knowledge of the mother across the street, and was injured by a team in crossing the street, which was filled with holiday crowds and vehicles of all sorts, the court reversed a judgment in favor of the child, on the ground that the mother