Gaynor, J.:
The plaintiff was five years old when injured. The defendant was running its dirt cars, such as are used by contractors, along Middleburg avenue on a temporary track. Moore street does not cross Middleburg avenue, but runs into it at or near right angles and ends there. A train of these cars was standing with its rear at Moore street. The plaintiff was crossing Middleburg avenue at Moore street, and as he got on the defendant’s tracks, and about six feet in the rear of the said train, it was suddenly backed up and ran over him. On these facts a non-suit was granted. This was error, for the 'defendant owed the duty of care, and there was no evidence that there was any one at the crossing, or at the rear of the train, or anywhere, to look out for people crossing, or any evidence on that head.
The court could not rule as matter of law that the plaintiff was guilty of contributory negligence. In Tucker v. N. Y. C. & H. R. R. R. Co. (124 N. Y. 308), the case of an infant a little over 12 years of age, the court, after a full discussion of the age at which a child may as matter of law be presumed sui juris in a case like this, concluded as follows: “ But in the absence of evidence tending to show that an injured infant twelve years old was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui juris ”. The opinion throughout fixes 12 years as the age before which an infant will not be and after which he will be deemed' sui juris as matter of law, unless the contrary be proved. In the case of an infant plaintiff under [138]*13812 the plaintiff would have no reason to prove him sui juris, but the contrary, and in the case of an infant plaintiff of 12 or over the defendant would have no reason to prove him non sui juris, but the contrary; so that it would seem plain on which side the necessity of proof would lie in each case, assuming the legal presumption to be as stated in the absence of any evidence, on the subject except that of age. In Zwack v. N. Y., L. E. & W. R. R. Co. (160 N. Y. 365), the case of a ten year old boy, the case of Tucker is mentioned with apparent full approval as follows: “ The reasoning of the court in the case of Tucker v. N. Y. C. & H. R. R. R. Co. (124 H. Y. 308). is to the effect that an infant under the age of twelve years is presumed to bo non sui juris, so the question with respect to his capacity at that age becomes one of fact. It is true that an infant, even of more tender years, may be shown to be sui juris. The fact must in such cases depend upon the capacity and intelligence of the child, and, hence, becomes a question for the consideration of the jury in connection with all the facts and circumstances of the case And the case before the court was then disposed of on this basis. ¡Now, if the law be, as stated in the' foregoing- quotation, that the law presumes a child under 12 years to be non sui juris, unless the contrary be proved, the rule would seem to be deducible that it is for the defendant to make such proof in order to avoid such legal presumption; and in the same way that it is for the plaintiff to show that an infant plaintiff over 12 is non sui juris / and such deduction has been made (Hill v. Baltimore & N. Y. R. Co., 75 App. Div. 325; McDonald v. Metropolitan St. R. Co., 80 id. 233; Gerber v. Boorstein, 113 id. 808). In the McDonald case Mr. Justice Hatch stated the rule clearly as follows : “In the case of infants, under the age of twelve years, 'the burden of proof is upon the defendant to show the possession by such infant, of sufficient mental capacity to understand, appreciate and guard against the situation in which it is placed, and the plaintiff may rest in respect of such question upon the legal presumption, which protects the infant from the imputation of negligence, unless it be a case where the negligence of the infant is imputable to the parent. When an infant is twelve years of age or above, the burden is upon the plaintiff to show the mental capacity of the infant and establish as a fact that such infant was not pos[139] sessed of sufficient mental capacity to exercise the degree of care and caution which is chargeable upon an adult, and it then becomes a question for the jury to determine whether the degree of care exercised in the particular case was nick. as to exonerate the infant from the charge of contributory negligence measured by its' age and capacity.”
But in the very recent case of Simkoff v. Lehigh Valley R. R. Co. (190 N. Y. 256), where the plaintiff was an infant 7 years old, the reverse is explicitly held, viz., that there was no legal presumption that he was non sui juf'is, but that the burden was on the plaintiff to show that he was non sui juris. And says the court for a general rule: “ The establishment of the fact that an infant is non sui juris to the satisfaction of the jury, if considered material, is as much a part of the plaintiff’s case as any other evidence is, upon which he relies to make out a case for a recovery ”; and it is stated that that court had never decided to the contrary. The understanding of its said former decisions must therefore now be corrected and abandoned.
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Gaynor, J.:
The plaintiff was five years old when injured. The defendant was running its dirt cars, such as are used by contractors, along Middleburg avenue on a temporary track. Moore street does not cross Middleburg avenue, but runs into it at or near right angles and ends there. A train of these cars was standing with its rear at Moore street. The plaintiff was crossing Middleburg avenue at Moore street, and as he got on the defendant’s tracks, and about six feet in the rear of the said train, it was suddenly backed up and ran over him. On these facts a non-suit was granted. This was error, for the 'defendant owed the duty of care, and there was no evidence that there was any one at the crossing, or at the rear of the train, or anywhere, to look out for people crossing, or any evidence on that head.
The court could not rule as matter of law that the plaintiff was guilty of contributory negligence. In Tucker v. N. Y. C. & H. R. R. R. Co. (124 N. Y. 308), the case of an infant a little over 12 years of age, the court, after a full discussion of the age at which a child may as matter of law be presumed sui juris in a case like this, concluded as follows: “ But in the absence of evidence tending to show that an injured infant twelve years old was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui juris ”. The opinion throughout fixes 12 years as the age before which an infant will not be and after which he will be deemed' sui juris as matter of law, unless the contrary be proved. In the case of an infant plaintiff under [138]*13812 the plaintiff would have no reason to prove him sui juris, but the contrary, and in the case of an infant plaintiff of 12 or over the defendant would have no reason to prove him non sui juris, but the contrary; so that it would seem plain on which side the necessity of proof would lie in each case, assuming the legal presumption to be as stated in the absence of any evidence, on the subject except that of age. In Zwack v. N. Y., L. E. & W. R. R. Co. (160 N. Y. 365), the case of a ten year old boy, the case of Tucker is mentioned with apparent full approval as follows: “ The reasoning of the court in the case of Tucker v. N. Y. C. & H. R. R. R. Co. (124 H. Y. 308). is to the effect that an infant under the age of twelve years is presumed to bo non sui juris, so the question with respect to his capacity at that age becomes one of fact. It is true that an infant, even of more tender years, may be shown to be sui juris. The fact must in such cases depend upon the capacity and intelligence of the child, and, hence, becomes a question for the consideration of the jury in connection with all the facts and circumstances of the case And the case before the court was then disposed of on this basis. ¡Now, if the law be, as stated in the' foregoing- quotation, that the law presumes a child under 12 years to be non sui juris, unless the contrary be proved, the rule would seem to be deducible that it is for the defendant to make such proof in order to avoid such legal presumption; and in the same way that it is for the plaintiff to show that an infant plaintiff over 12 is non sui juris / and such deduction has been made (Hill v. Baltimore & N. Y. R. Co., 75 App. Div. 325; McDonald v. Metropolitan St. R. Co., 80 id. 233; Gerber v. Boorstein, 113 id. 808). In the McDonald case Mr. Justice Hatch stated the rule clearly as follows : “In the case of infants, under the age of twelve years, 'the burden of proof is upon the defendant to show the possession by such infant, of sufficient mental capacity to understand, appreciate and guard against the situation in which it is placed, and the plaintiff may rest in respect of such question upon the legal presumption, which protects the infant from the imputation of negligence, unless it be a case where the negligence of the infant is imputable to the parent. When an infant is twelve years of age or above, the burden is upon the plaintiff to show the mental capacity of the infant and establish as a fact that such infant was not pos[139] sessed of sufficient mental capacity to exercise the degree of care and caution which is chargeable upon an adult, and it then becomes a question for the jury to determine whether the degree of care exercised in the particular case was nick. as to exonerate the infant from the charge of contributory negligence measured by its' age and capacity.”
But in the very recent case of Simkoff v. Lehigh Valley R. R. Co. (190 N. Y. 256), where the plaintiff was an infant 7 years old, the reverse is explicitly held, viz., that there was no legal presumption that he was non sui juf'is, but that the burden was on the plaintiff to show that he was non sui juris. And says the court for a general rule: “ The establishment of the fact that an infant is non sui juris to the satisfaction of the jury, if considered material, is as much a part of the plaintiff’s case as any other evidence is, upon which he relies to make out a case for a recovery ”; and it is stated that that court had never decided to the contrary. The understanding of its said former decisions must therefore now be corrected and abandoned.
The infant plaintiff here was only 5 years old; yet I do not venture, to suggest to the court in view of the foregoing, that the law presumes him to be non sui juris. The most that it seems to be safe to say, so as not to cause anything to be done on the trial to jeopardize the verdict for the plaintiff, if he obtain one, is that at all events the question of his degree of intelligence and capacity, and therefore of his contributory negligence, was not for the court but for the jury. I do not see how this court can go wrong in saying at least that much. The question whether his age alone does not give rise to a presumption that he is non suijtoris, on which the plaintiff could safely rest, might seem to be plain enough; but it can be avoided without detriment to" the plaintiff’s case by leaving the whole question to the jury. A child has to be judged as a child. A child may only be held to the exercise of that degree of care which one of his years and intelligence can be expected and required to exercise. There must be an age when a child is so young and immature that no rule of care can be applied to it, and the jury may properly be so instructed; but we now know that such age is not fixed in years in this state even as a presumption of fact, capable of being modified or rebutted by evidence, but is vari[140] able, and generally for the jury. Nevertheless there must be cases so obvious and indisputable that it would not be error for the trial judge to decide them as matter of law — although a jury could decide just as well that a toddling child was non sui juris, for instance. Between such a state of immaturity, and that state of maturity to which the rule of care applicable to all adults becomes applicable, is a wide zone, and those in it are to he judged by the • jury according to their age, maturity and intelligence on the question of their negligence. Some think that it were better if the phrases non siti juris and sui juris were dropped altogether in the restricted and uncertain sense in which they have been used in respect of children plaintiffs in actions for damages for negligence.
The judgment should be reversed.
Hirschberg, P. J., Woodward, Jenks and Miller, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.