Ardolino v. Reinhardt

Ingraham, J. (concurring):

I concur with Mr. Justice Houghton and simply wish to add that in this case the plaintiff was. allowed by his parents to play in the street of a city unattended, and it was while so playing that the accident happened. The question was properly submitted to the jury as to whether or not his parents were negligent in. allowing a child of his age and intelligence to play unattended in a public street and the jury have found that they were not negligent. This could only be justified if the plaintiff was of such an age and had such intelligence that he could look out for himself while playing in the street, and in such a case it seems to me- clear that the infant was bound to exercise the care and caution to be expected from a child of his age and intelligence which justified the parents in allowing him to play there unattended. If he was absolutely without ability to exercise any care to avoid vehicles in the streetj then it would have been the duty of the jury to have found that it was negligent for the parents to allow him to play there unattended; but if he had such ability he was bound to exercise it to avoid the vehicles lawfully using the street. It was, therefore, error for the court to refuse to submit to the jury the question as to whether the plaintiff did exercise such care and intelligence as justified them in finding that the parents were not guilty of negligence in allowing him to play in the street unattended.