102 N.E. 519 | NY | 1913
This action was brought by the father as administrator of a boy fourteen years of age, who was killed by the defendant's automobile, to recover damages for the death. It would be without profit to relate the circumstances of the accident. It is sufficient to say that both the negligence of the defendant's servant and the absence of contributory negligence on the part of the deceased were questions of fact. The case was, therefore, properly for the jury to determine.
But one question is presented by this appeal which we are required to notice. The learned trial judge charged: "The deceased was probably sui juris, as they call it; but that does not mean that he must exercise the degree of care that an adult person must exercise, but he was charged with the duty of exercising the measure of care and caution that is common and usual with boys of that *418 age." To this the defendant excepted and requested the court to charge: "That the burden of proof is upon the plaintiff to show that the deceased used the same degree of diligence in avoiding danger that would be exacted of an adult under the same circumstances." This was refused and the defendant excepted.
The learned counsel for the defendant insists that the decision of this court in Tucker v. N.Y. Central H.R.R.R. Co. (
The question when an infant ceases to be non sui juris and becomes responsible for its negligence has been the subject of some difference of views in this court. In the Thurber case it was held that the plaintiff, an infant of eight or nine years of age, was not non sui juris. In Moebus v. Herrmann (
There doubtless comes a time in the life of a child when, though still in law an infant, it reaches such maturity that no distinction on account of age can be drawn in its favor. It is not necessary to determine what that time is. It is sufficient to say that, if a question of law and not of fact, the age is greater than that of deceased. The statutes of the state recognize this lack of judgment and responsibility on the part of immature persons. Thus it is forbidden to employ a child under the age of fourteen years in a factory under any circumstances, *421 or a child between fourteen and sixteen without the employment certificate provided by the statute (Labor Law [Cons. Laws, ch. 31], § 70), while a criminal act which would be a felony if committed by an adult, is only a misdemeanor when committed by a child under the age of sixteen. (Penal Law [Cons. Laws, ch. 40], § 2186.)
The judgment should be affirmed, with costs.
WILLARD BARTLETT, HISCOCK, CHASE, COLLIN and HOGAN, JJ., concur; WERNER, J., absent.
Judgment affirmed.