Merrell, J.
I think the judgments appealed from should be affirmed. Our attention is directed to no error occurring in the course of the trial. There is no attempt to excuse the palpable negligence of the defendant, city of New York. The only ground upon which the judgments are sought to be reversed is that the infant plaintiff, at the time of receiving his injuries, was guilty of contributory negligence as matter of law and that by reason thereof he cannot recover in the action. I cannot agree that under the evidence the plaintiff was guilty of contributory negligence as matter of law. The question as to the plaintiff’s negligence was for the jury.
The infant plaintiff, a boy about ten years and eight months of age, on April 27, 1922, was playing tag with other boys on One Hundred and Fifty-second street in the borough of The Bronx. On the southwesterly side of East One Hundred and Fifty-second street where the plaintiff and his companions were playing there had been torn down two years before a brewery building, leaving along the southwesterly sidewalk of One Hundred and Fifty-second street the open cellar of the brewery building which had been torn down. There were no guards whatever along the sidewalk at the point where the plaintiff received his injuries. From the building line of what was formerly the brewery building extending into the sidewalk toward the curb was a hole two feet in depth and four feet in [407]*407width at its widest point. Just northerly of this hole in the sidewalk, an iron pipe two and a half inches in diameter and a foot and nine inches high stood vertically in the sidewalk. The plaintiff testified that one of his companions was chasing him and that he ran along the sidewalk to circle around his pursuer and get away from him, and that when he turned around to see how far his pursuer was behind him plaintiff's foot went into the hole in the sidewalk and he staggered and tried to catch himself, and that then his foot hit the pipe projecting above the sidewalk and he was thrown into the cellar excavation. A photograph taken three days after the accident and the undisputed testimony of the plaintiff, his father and two disinterested witnesses show that prior to the accident there were no guards either along the open cellar into which the plaintiff was precipitated, or about the hole into which the plaintiff stepped, or about the pipe upon which he tripped. The undisputed testimony also shows that the occasion when plaintiff was injured was the first time he had ever played upon One Hundred and Fifty-second street or been upon the sidewalk in front of the brewery building cellar. He had received no -warning whatever of the existing conditions in the sidewalk and did not see the hole as he was running along. " It is said in the dissenting opinion herein that the operations themselves constituted a warning that the pavement might have been-disturbed. Perhaps this might be so if building operations were in progress, but such was not the fact and for months and probably for two years nothing had been done in the way of replacing the brewery building which had been torn down.
I do not think the infant plaintiff can be said to have been guilty of contributory negligence as matter of law. So far as I know the courts of this State have never held that a child under twelve years of age was guilty of contributory negligence as matter of law for failure to exercise proper care, except in cases where the child has committed some willful or deliberate act. Except in such a case, I know of no decision holding that a child of such immature age was guilty of contributory negligence as matter of law. On the contrary, the decisions of this court and of the Court of Appeals have uniformly held that no child under the age of twelve can be deemed guilty of contributory negligence as matter of law, except for deliberate and willful acts. (Jacobs v. Koehler S. G. Co., 208 N. Y. 416; Costello v. Third Avenue Railroad Co., 161 id. 317; Dowling v. N. Y. C. & H. R. R. R. Co., 90 id. 670; Byrne v. N. Y. C. & H. R. R. R. Co., 83 id. 620; O’Mara v. Hudson River R. R. Co., 38 id. 445; Swift v. Staten Island Rapid Transit R. R. Co., 123 id. 645.) In Jacobs v. Koehler S. G. Co. (supra) the Court of Appeals held [408]*408that the trial court properly charged the jury that “ 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 age.” Chief Judge Cullen, in the course of his opinion in Jacobs v. Koehler S. G. Co., said (at p. 418): “That the deceased was sui juris is clear, but that an infant whenever he becomes sui juris is required to exercise the same degree of caution as an adult is not the law of this State, nor was it so decided in the Tucker case [Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308]. We think the rules governing the contributory negligence of infants are very well settled by the decisions of this court, though these rules do not obtain in many other jurisdictions. An infant may be of such tender years as to be incapable of personal negligence. At such age the infant is termed non sui juris, but if not responsible for its own negligence, the negligence of its parents or guardians in suffering it to incur danger may be imputed to it. This is what is called the doctrine of imputed negligence. [Citing cases.] Later, children emerge from this condition and are responsible for their failure to exercise reasonable care for their own protection. But they are not required to exercise the degree of care required of an adult, but only to exercise the degree expected from one of its years.” (Citing cases.)
In Dowling v. N. Y. C. & H. R. R. R. Co. (supra) the Court of Appeals, concerning an infant of the age of nine years, said (at p. 671): “An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age, and in passing upon the question of contributory negligence the age of the infant, with all the other circumstances in the case, is to be considered by the jury.”
In Byrne v. N. Y. C. & H. R. R. R. Co. (supra) the infant plaintiff at the time of receiving her injuries was like the infant plaintiff in the case at bar, between ten and eleven years of age. It was claimed that the infant plaintiff was guilty of contributory negligence as matter of law and, therefore, could not recover in the action. The Court of Appeals held otherwise, saying (at p. 621): “ The law is not so unreasonable as to exact from an infant the same degree of care and prudence in the presence of danger as it exacts from adults. An infant, to avoid the imputation of'negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age. [Citing cases.]
“ We cannot within these authorities, upon the undisputed facts, say, as matter of law, that the plaintiff — regard being had to her [409]*409tender years — failed in that degree of care which the law required of her. Whether she did or not was, upon all the circumstances of this case, a question for the jury.” (Italics are the writer’s.)
In Swift v. Staten Island Rapid Transit R. R. Co. (supra)
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Merrell, J.
I think the judgments appealed from should be affirmed. Our attention is directed to no error occurring in the course of the trial. There is no attempt to excuse the palpable negligence of the defendant, city of New York. The only ground upon which the judgments are sought to be reversed is that the infant plaintiff, at the time of receiving his injuries, was guilty of contributory negligence as matter of law and that by reason thereof he cannot recover in the action. I cannot agree that under the evidence the plaintiff was guilty of contributory negligence as matter of law. The question as to the plaintiff’s negligence was for the jury.
The infant plaintiff, a boy about ten years and eight months of age, on April 27, 1922, was playing tag with other boys on One Hundred and Fifty-second street in the borough of The Bronx. On the southwesterly side of East One Hundred and Fifty-second street where the plaintiff and his companions were playing there had been torn down two years before a brewery building, leaving along the southwesterly sidewalk of One Hundred and Fifty-second street the open cellar of the brewery building which had been torn down. There were no guards whatever along the sidewalk at the point where the plaintiff received his injuries. From the building line of what was formerly the brewery building extending into the sidewalk toward the curb was a hole two feet in depth and four feet in [407]*407width at its widest point. Just northerly of this hole in the sidewalk, an iron pipe two and a half inches in diameter and a foot and nine inches high stood vertically in the sidewalk. The plaintiff testified that one of his companions was chasing him and that he ran along the sidewalk to circle around his pursuer and get away from him, and that when he turned around to see how far his pursuer was behind him plaintiff's foot went into the hole in the sidewalk and he staggered and tried to catch himself, and that then his foot hit the pipe projecting above the sidewalk and he was thrown into the cellar excavation. A photograph taken three days after the accident and the undisputed testimony of the plaintiff, his father and two disinterested witnesses show that prior to the accident there were no guards either along the open cellar into which the plaintiff was precipitated, or about the hole into which the plaintiff stepped, or about the pipe upon which he tripped. The undisputed testimony also shows that the occasion when plaintiff was injured was the first time he had ever played upon One Hundred and Fifty-second street or been upon the sidewalk in front of the brewery building cellar. He had received no -warning whatever of the existing conditions in the sidewalk and did not see the hole as he was running along. " It is said in the dissenting opinion herein that the operations themselves constituted a warning that the pavement might have been-disturbed. Perhaps this might be so if building operations were in progress, but such was not the fact and for months and probably for two years nothing had been done in the way of replacing the brewery building which had been torn down.
I do not think the infant plaintiff can be said to have been guilty of contributory negligence as matter of law. So far as I know the courts of this State have never held that a child under twelve years of age was guilty of contributory negligence as matter of law for failure to exercise proper care, except in cases where the child has committed some willful or deliberate act. Except in such a case, I know of no decision holding that a child of such immature age was guilty of contributory negligence as matter of law. On the contrary, the decisions of this court and of the Court of Appeals have uniformly held that no child under the age of twelve can be deemed guilty of contributory negligence as matter of law, except for deliberate and willful acts. (Jacobs v. Koehler S. G. Co., 208 N. Y. 416; Costello v. Third Avenue Railroad Co., 161 id. 317; Dowling v. N. Y. C. & H. R. R. R. Co., 90 id. 670; Byrne v. N. Y. C. & H. R. R. R. Co., 83 id. 620; O’Mara v. Hudson River R. R. Co., 38 id. 445; Swift v. Staten Island Rapid Transit R. R. Co., 123 id. 645.) In Jacobs v. Koehler S. G. Co. (supra) the Court of Appeals held [408]*408that the trial court properly charged the jury that “ 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 age.” Chief Judge Cullen, in the course of his opinion in Jacobs v. Koehler S. G. Co., said (at p. 418): “That the deceased was sui juris is clear, but that an infant whenever he becomes sui juris is required to exercise the same degree of caution as an adult is not the law of this State, nor was it so decided in the Tucker case [Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308]. We think the rules governing the contributory negligence of infants are very well settled by the decisions of this court, though these rules do not obtain in many other jurisdictions. An infant may be of such tender years as to be incapable of personal negligence. At such age the infant is termed non sui juris, but if not responsible for its own negligence, the negligence of its parents or guardians in suffering it to incur danger may be imputed to it. This is what is called the doctrine of imputed negligence. [Citing cases.] Later, children emerge from this condition and are responsible for their failure to exercise reasonable care for their own protection. But they are not required to exercise the degree of care required of an adult, but only to exercise the degree expected from one of its years.” (Citing cases.)
In Dowling v. N. Y. C. & H. R. R. R. Co. (supra) the Court of Appeals, concerning an infant of the age of nine years, said (at p. 671): “An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age, and in passing upon the question of contributory negligence the age of the infant, with all the other circumstances in the case, is to be considered by the jury.”
In Byrne v. N. Y. C. & H. R. R. R. Co. (supra) the infant plaintiff at the time of receiving her injuries was like the infant plaintiff in the case at bar, between ten and eleven years of age. It was claimed that the infant plaintiff was guilty of contributory negligence as matter of law and, therefore, could not recover in the action. The Court of Appeals held otherwise, saying (at p. 621): “ The law is not so unreasonable as to exact from an infant the same degree of care and prudence in the presence of danger as it exacts from adults. An infant, to avoid the imputation of'negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age. [Citing cases.]
“ We cannot within these authorities, upon the undisputed facts, say, as matter of law, that the plaintiff — regard being had to her [409]*409tender years — failed in that degree of care which the law required of her. Whether she did or not was, upon all the circumstances of this case, a question for the jury.” (Italics are the writer’s.)
In Swift v. Staten Island Rapid Transit R. R. Co. (supra) the plaintiff’s daughter was a girl of the age of fifteen years and was struck by the defendant’s train in crossing its tracks. The Court of Appeals said (at p. 649): “ She [plaintiff’s daughter] was unfamiliar with the locality, and presumptively in regard to the time of the arrival and departure of trains. Her attention was attracted by the passing train from the east, and her opportunities to see and hear the train from the west were obstructed by the smoke and noise of the bell and engine starting out, and under all the circumstances it cannot, as we think, be held as matter of law that she neglected to exercise that degree of care and caution required of a person of her age, situated as she was. The degree of care and caution required by the law in such case depends upon the maturity and capacity of the individual, and all the surrounding circumstances; and if there is any doubt as to the facts, or as to the inferences to be drawn from them, the question cannot be determined as matter of law, but must be submitted to the jury.” (Italics are the writer’s.) Can it be said that the infant plaintiff in the case at bar, a boy less than eleven years of age, at play upon a sidewalk with which he was unfamiliar, was guilty of contributory negligence as matter of law in failing to observe the unguarded hole in the sidewalk? I think not.
The decisions relied upon by my brother Martin do not seem to me to be in point. In Sobol v. Union R. Co. (122 App. Div. 817) the decedent, a boy about nine years of age, was injured by running into the side of the defendant’s street car without looking, and this court held that in so doing the decedent was guilty of contributory negligence which precluded a recovery. The case is quite different from the case at bar. The existence of the car tracks was of itself enough to warn the decedent. In the case at bar he had no warning whatever of the existence of the hole in the sidewalk upon which he was running. His attention was diverted for the moment in his play, and as he was looking over his shoulder at his pursuer he stepped into the unguarded hole.
In Guichard v. New (9 App. Div. 485) Mr. Justice Patterson, Writing for this court, said (at p. 487): “ The case is, therefore, presented of a boy attending school, playing in the streets, distinctly warned not to do a particular act, and that if he does injury will ensue, yet doing that act with full knowledge and despite the warning he has received.” (Italics are the writer’s.) The circumstances in the Guichard ease clearly distinguish it from the case at bar, where the [410]*410infant plaintiff was unfamiliar with the physical situation of the sidewalk and received no warning.
In Hooper v. Johnstown, G. & K. H. R. R. Co. (59 Hun, 121) the plaintiff’s intestate was a girl eleven years of age. There was no evidence showing how the intestate fell off an embankment and into a creek. No one saw her fall, but her body was found in the creek. She was seen going along the footpath a little north of the place where she probably fell in. She was tossing a ball in the air and catching it, continuing toward the schoolhouse. Presiding Justice Learned, writing for the General Term, Third Department, in the course of his opinion, said (at p. 126): “ She [the deceased] was eleven years old and familiar with the way to school, where she had been Jive or six years. She was, therefore, capable of exercising some care and prudence.” (Italics are the writer’s.) Unlike the case at bar, the deceased in the Hooper case was entirely familiar with the physical situation over which she had traveled for five or six years. In the case at bar the infant plaintiff, according to the evidence, had never before been upon the sidewalk where he fell.
I am, therefore, of the opinion that the trial court properly submitted to the jury for its determination the question as to whether or not the plaintiff, as he was running along the sidewalk at play, was guilty of such negligence on his part as precluded his recovery from the defendant of damages sustained by reason of the defendant’s negligence.
The judgments appealed from should be affirmed, with costs.
Finch and Burr, JJ., concur; Clarke, P. J., and Martin, J., dissent.