99 N.Y.S. 1091 | N.Y. App. Div. | 1906
The facts which the jury could have found are that the plaintiff, a nine years old boy, started to cross, the street 75 feet from the corner of another street; that the first rail of the street car tracks was 13 feet from the curb; that as the plaintiff stepped from the cui’b the defendant’s team turned the said corner into the street and came along fast in the left-hand car track, viz., the one next to the plaintiff; that the plaintiff cleared the left-hand horse, viz.,'the one nearer the curb, but was hit by the off horse and knocked down.
Even if the plaintiff had been an adult the nonsuit would have been error, for if there had been evidence that he looked and saw the team so far away when he was at the curb, it could not have been ruled as matter of law that it was negligence in him to attempt to cross ahead of the team. That being so, it of course cannot be held as matter . of law that his failure to look was “ contributory ” negligence even though" it -could be called negligence. The court cannot nonsuit for negligence which cannot as "matter of law be held to have contributed to the accident.
But there is another insuperable difficulty to sustaining the non-suit. The court could not decide as matter of law that the plaintiff was negligent. The degree of his intelligence and maturity was for the jury, not the- court, to determine, and 6n determining it, it was another question of fact for them, considering his degree of intelligence and maturity as they foii’nd it, whether he was guilty of negligence. If there be any case at all in which the court may rule as matter of law that a child under 12 was negligent, this is not the case. In the case of an infant who has arrived at the-age of 12, the law presumes him sui juris, but the contrary may be proved and found as a matter of fact, the burden of proof being on the side asserting it. In the case of a child under 12, the law does not presume him sui juris. Whether he be suiju/ris is a .question of fact, the burden of proof being on the side asserting it (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308 ; Zwack v. N. Y., L. E. & W. R. R. Co., 160 id. 362 ; McDonald v. Metropolitan St. R. Co., 80 App. Div. 283).
It-seems to me that the judgment should be. reversed.
Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.
