Verni v. Johnson

Desmond, J. The testimony here raised a question of fact as to defendant’s negligence. The Trial Justice submitted to the jury that issue and an issue as to contributory negligence of plaintiff’s intestate, an infant three years and two months old at the time of the accident. Plaintiff’s counsel requested a charge that “ a child of the age of three years and two months is non sui juris and incapable of being guilty of negligence ”. The request was refused. We granted leave to appeal so that we might pass on the correctness of the rule of law contended for in that request to charge. Ip every reported case where the question has been squarely raised, this court has held that a three-year-old child is conclusively presumed to be incapable of negligence (Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 459, 460; Ihl v. Forty-second Street & Grand St. Ferry R. R. Co., 47 N. Y. 317, 322, 323; Prendegast v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 652, 653; McGarry v. Loomis, 63 N. Y. 104,106). In Meyer v. Inguggiato (258 App. Div. 331, 333) the second department joined unani *438 mously in an opinion by Justice Hagarty holding that “ a child under the age of four years is non sui juris, as a matter of law ”. We denied leave (282 N. Y. 811). The argument for leaving the question of competency to juries is based on certain language in Camardo v. New York State Railways (247 N. Y. 111). The Gamardo child was just under five years of age and the language of this court’s opinion must be read with that in mind. There is no sign in that opinion of any intent to overrule the Mangam, Ihl, Prendegast and McGarry cases, above cited. Throughout the United States, “ as regards a child between three and four years of age, the weight of authority is in favor of a conclusive presumption of incapacity ” (107 A. L. R. 100). The rule which refuses to allow such young children to be penalized for supposed faults has been followed in this court at least since 1868 (Mangam v. Brooklyn R. R. Co., supra). It is not an unjust rule or one which changing conditions make obsolete. No reason appears for changing it. The judgments should be reversed and a new trial granted, with costs to abide the event.