Camardo v. New York State Rys

• Decision Date: 10 January 1928
• Citation: 159 N.E. 879,247 N.Y. 111
• Parties: CAMARDO v. NEW YORK STATE RYS.
• Court: New York Court of Appeals Court of Appeals

247 N.Y. 111

159 N.E. 879

CAMARDO

v.NEW YORK STATE RYS.

Court of Appeals of New York.

Jan. 10, 1928.

Action by Albany Camardo, an infant, by Henry Dean Quinby, Jr., his guardian ad litem, against the New York State Railways. From a judgment of the Appellate Division (217 App. Div. 786, 216 N. Y. S. 809), affirming a judgment on a verdict of the jury for defendant, plaintiff appeals.

Affirmed.

Andrews and Kellogg, JJ., dissenting.

Appeal from the Supreme Court, Appellate Division, Fourth Department.

John Van Voorhis, or Rochester, for appellant.

Collin McLennan, of Rochester, for respondent.

LEHMAN, J.

[1] The infant plaintiff was struck by a street car operated by the defendant and sustained serious injuries. At the time of the accident the plaintiff was about 4 years and 10 months old. He attended a kindergarten class at a school in Rochester. An older sister who attended the same school, or the child's mother, always took the child home after his class was dismissed. On the afternoon of the accident the child's sister had been instructed to bring him home. Her class was dismissed a few minutes after the kindergarten class. In the interval the plaintiff unexpectedly and contrary to his custom started from the school without a guardian. His home was on Central avenue. He proceeded safely to Central avenue opposite his home. There he played with some small companions. For some reason a somewhat larger boy ran diagonally across the street. The plaintiff ran after him. The street car operated by the defendant was approaching near the opposite side of the street. The larger boy passed safely in front of the car. The plaintiff was struck by the car. The accident occurred within, at most, a half hour after the child was dismissed from his kindergarten class. The trial judge submitted to the jury the questions of defendant's negligence and the infant plaintiff's freedom from contributory negligence. The jury brought in a verdict in favor of the defendant. Inference that the defendant was negligentmight perhaps have been drawn by the jury from the evidence, but the opposing inference that the motorman could not have avoided the accident by the exercise of caution was certainly not excluded.

[2] It is not unlawful for children to play in the street, but it may hardly be said, as matter of law, that children have the right to play in the part of a street where street cars are operated and motor vehicles are passing. Perhaps the jury might have found that a reasonably prudent motorman should have anticipated that children would play in the street and might run in front of a moving car, but it cannot be said as a matter of law that the motorman ought to have anticipated such possibilities. Upon this branch of the case we find no errors in the charge or in the trial judge's refusal to charge in accordance with the requests of the plaintiff. Contention is, however, made that the trial judge erred in submitting to the jury any question as to the plaintiff's contributory negligence and in his refusals to charge as requested by the plaintiff upon that element of the plaintiff's cause of action.

[3][4][5] The plaintiff in an action for personal injuries always had the burden of proving freedom from contributory negligence. That rule applies alike where the plaintiff is an adult or an infant. Wendell v. New York Cent. & H. R. R. Co., 91 N. Y. 420;Stone v. Dry Dock, E. B. & B. R. Co., 115 N. Y. 104, 21 N. E. 712;Simkoff v. Lehigh Valley R. Co., 190 N. Y. 256, 83 N. E. 15. The care which may reasonably be exacted of an immature child must be measured by a standard which a child may reasonably be expected to attain. A child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity. Thurber v. Harlem Bridge, M. & F. R. Co., 60 N. Y. 236;Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. 442,58 Am. Rep. 508. A child may be of such tender years that it lacks the experience which would enable it to realize the presence of a threatening danger, and the judgment which would enable it to avoid the danger. Since no care or caution may, under such circumstances, be expected of the child, it is incapable of personal negligence. ‘At such age the infant is termed non sui juris.’ Jacobs v. H. J. Koehler Sporting Goods Co., 208 N. Y. 416, 418,102 N. E. 519, L. R. A. 1917F, 7. As the child's capacity develops, the exercise of some care may reasonably be expected of it. With the approach of maturity the capacity of the normal child guadually approximates the capacity of the normal adult, and the exercise of approximately the same care may reasonably be exacted of it.

[6][7][8] An infant plaintiff, like an adult, has successfully carried its burden of proving freedom from contributory negligence on its part whenever facts are shown from which the inference is logically drawn that in that particular case the plaintiff has not failed in any duty to exercise that measure of care which the law requires. If conflicting inferences may be drawn, the question is one of fact; if only one inference can be drawn, the question is one of law. A child's age does not alone determine its capacity to care for itself and to avoid dangers which may threaten. The law does not disregard variations in capacity among children of the same age, and does not arbitrarily fix an age at which the duty to exercise some care begins or an age at which an infant must exercise the same care as an adult. Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. 442,58 Am. Rep. 508; Stone v. Dry Dock, E. B. & B. R. Co., supra; Zwack v. New York, L. E. & W. R. Co., 160 N. Y. 362, 54 N. E. 785.

True, there are cases where an infant plaintiff injured by the negligence of another is so young...