ANNA BELL KARR, (by her Guardian, William Karr), Respondent, v. WILLIAM H. PARKS, Appellant, 40 Cal. 188

Temple, J., delivered tbe opinion of tbe Court, Crockett, J., Sprague, J., and [Rhodes, C. J., concurring: Tbe plaintiff, by her guardian ad litem, brings tbis action to obtain damages for injuries received by being attacked and booked, while in a public street in Marysville, by defendant’s cow. The plaintiff, who was an infant, and, at the time the injuries were received, was between ten and eleven years of age, went out with ber sister, wbo was five years old, to walk and pick flowers, upon Sixth street in the city of Marysville, at about six o’clock in the afternoon.

When about sixty feet from ber father’s bouse she saw the cow coming toward ber in a rapid and threatening manner. She then caught ber little sister by the band and attempted to get into a corral, which was near by, but was caught and hooked and severely injured.

The defendant claims that it was about sixty feet from where the plaintiff was at the time she first saw the cow, to her father’s house, and seventy feet to the corral, although by what means the precise distance to the corral was made out from the evidence we do not clearly see, for being in the street, though nearer the opposite side, the whole width of the street could not have been between her and the corral. There was some evidence, though very slight, which tended to show that the defendant knew that the cow had previously made a similar attack upon a child.

The cow was allowed to run at large by the defendant; in other words, was kept in the streets and upon uninclosed lands in the vicinity. "When the plaintiff had concluded her testimony, the defendant moved for a nonsuit, substantially upon the grounds: First, that the plaintiff was guilty of negligence, which contributed to the injury; second, that the streets are not proper places for children to go to plav, but are for the use of travelers only.

When the evidence was all in, the defendant moved the Court to render judgment dismissing the complaint, substantially upon the same ground, and when that motion was overruled, asked the Court to instruct the jury to find for the defendant, which was also refused, and the plaintiff had judgment; and the defendant appeals directly from that judgment, and relies upon these several rulings as error.

The defendant claims that the facts are undisputed, and therefore the question of negligence is purely a question of law, to be decided by the Court, and not by the jury; and that, from the admitted facts of this case, the Court should hold, as matter of law, that the plaintiff was guilty of such negligence as contributed proximately to the injury. Whether it is negligence in a parent or guardian to allow a child to go unattended in the street, depends greatly upon the amount of travel in and the use made of the street as affecting the danger to which one is exposed in being there.

Unless there is some unusual exposure to danger, however, we do not apprehend that it could be seriously contended that there is any negligence whatever in allowing a child between ten and eleven years, ordinarily active and intelligent, to be in the street. Except where the exercise of judgment or strength is required, such children are perhaps fully as able to save themselves from danger as grown people.

In a street comparatively unfrequented, as in this case, we certainly should not hold it evidence of negligence, even in children of more tender years; and if the injury had been done to the younger sister instead of the elder, while walking in the street in the day time, within sixty feet of her father’s house, when there was no particular reason to apprehend danger, and in a street almost entirely unused, we should not be prepared to say, as matter of law, that it was negligence on the part of the parent. Such a rule would be harsh and unreasonable, especially to the poor, in every town and city.

The evidence does not satisfy us that there was even bad judgment in the plaintiff’s attempting to escape to the corral for protection rather than to the house, but it would be absurd to hold that even an adult person, in time of imminent danger, is negligent, unless he takes every precaution that a careful calculation afterward will show he might have taken. She had no time to measure and compare distances, or to calculate whether she would gain time by retreating in one direction rather than another, even though, as a mathematical problem, it was very easy of solution.

Upon the question of contributory negligence we see no reason to doubt the correctness of the verdict. We do not understand the evidence as showing that plaintiff was playing in the street, but even if it were so, we do not think it would help the defendant. A person may perhaps be considered a trespasser who stops in the street to feed his horse, and thereby obstructs the highway by other uses than that of travel.

A party who leans upon the railing of a bridge, or engages in play in the public streets, and thereby exposes himself to danger which otherwise he would not be exposed to, may not be able to recover for injuries received through defects in the highway, in eases where the public is held responsible, and perhaps in some cases would not be able to recover for injuries received from the negligence of others; but it must appear either that the plaintiff was unlawfully obstructing the highway, or that the fact that she was playing there directly contributed to the injury. This does not appear in this case.

Judgment affirmed. Waelaoe, J., expressed no-opinion.