Smith v. Rochester Railway Co.

Williams, J.: The judgment and order should be reversed on law and facts, and a new trial granted, with costs to appellant to abide event. The action is for negligently running defendant’s car against the plaintiff, a boy then about six years of age, who was playing horse in the street. The grounds urged for a reversal relate to the question of contributory negligence. The court submitted to the jury the question whether the boy was sui juris Or non sui juris, and whether, if he was sui juris, he exercised care to avoid injury, com848 . mensúrate with his years and1 intelligence. There was evidence upon which the jury might find the plaintiff sui juris. The defendant excepted to the submission to the jury of the question, if the plaintiff was sui juris, whether he used the care above referred to, and requested the court to charge that there was no evidence that the plaintiff used any care. This request was refused and the court said: “They have heard how much knowledge he had, and what the care was.” The defendant asked the court to point out to the jury what fact, or to indicate what fact they might consider on the question whether the plaintiff used any care. The court said : “ The Court is not obliged to point out facts to a jury. They find facts from the evidence.” The defendant asked the court to indicate from what facts the jury might find the plaintiff used a#iy- care. The court declined to charge further than •it had done. It will thus be seen that the question is very clearly presented whether there was evidence which would authorize the .jury to find the plaintiff if he was sui juris free from contributory negligence. "It is- well settled that plaintiff who is sui juris,, though a, child of tender years, in order to be free from contributory negligence, must exercise some care, in approaching danger, not the same degree of care as an adult, but such care as is commensurate with ,its age and intelligence. (Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 426; Simkoff v. Lehigh Valley R. R. Co., 190 id. 256, and cases therein referred to.) This was the rule of law, stated to the jury by the court, as I understand it, so that the only question here is whether, any care whatever was shown. The accident occurred in daylight. The car was in full view of the plaintiff and the boys playing with.him. The other boys were running after plaintiff and he was running towards the car with his head turned away from it. He could have seen it if he had looked, but he did not look. He ran in front of the car without exercising any care whatever to see or avoid it. This was clearly contributory negligence in a boy of about six years of age if found by the jury to be sui juris. The court should have charged the jury that the only theory upon which a recovery could be had was that the boy was non sui [849] juris, and his parents were not negligent in permitting him to play in the street where cars were passing frequently. All concurred, except Spring and Kruse, JJ., who dissented in an opinion by Kruse, J.