Jacobs v. H.J. Koehler Sporting Goods Co.

• Decision Date: 20 May 1913
• Citation: 102 N.E. 519,208 N.Y. 416
• Parties: JACOBS v. H. J. KOEHLER SPORTING GOODS CO.
• Court: New York Court of Appeals Court of Appeals

208 N.Y. 416

102 N.E. 519

JACOBS

v.H. J. KOEHLER SPORTING GOODS CO.

Court of Appeals of New York.

May 20, 1913.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Henry Jacobs, as administrator of the goods, chattels, and credits of Charles Jacobs, deceased, against the H . J. Koehler Sporting Goods Company. From a judgment of the Appellate Division (152 App. Div. 933,137 N. Y. Supp. 1123), affirming, by divided court, a judgment of the trial court entered on the verdict of a jury, in favor of plaintiff, defendant appeals. Affirmed.

Paul Bonynge, of New York City, for appellant.

Martin T. Manton, of New York City, for respondent.

CULLEN, C. J.

This action was brought by the father as administrator of a boy 14 years of age, who was killed by the defendant's automobile, to recover damages for the death. It would be without profit to relate the circumstances of the accident. It is sufficient to say that both the negligence of the defendant's servant and the absence of contributory negligence on the part of the deceased were questions of fact. The case was, therefore, properly for the jury to determine.

But one question is presented by this appeal which we are required to notice. The learned trial judge charged: ‘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.’ To this the defendant excepted and requested the court to charge: ‘That the burden of proof is upon the plaintiff to show that the deceased used the same degree of diligence in avoiding danger that would be exacted of an adult under the same circumstances.’ This was refused and the defendant excepted.

The learned counsel for the defendant insists that the decision of this court in Tucker v. N. Y. Central & H. R. R. R. Co., 124 N. Y. 308, 26 N. E. 916,21 Am. St. Rep. 670, justified and required the court to charge as requested, and that the refusal to so charge is error. In other words, he contends that the law of this state is that a child of the age of deceased, in the absence of evidence to the contrary, must be deemed to be sui juris and be held to the same degree of care and prudence that is required of an adult.

[1] 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 in not the law of this state, nor was it so decided in the Tucker Case. 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.

[2] 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. Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273;Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 98 Am. Dec. 66;Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. 442,58 Am. Rep. 508;Birkett v. Knickerbocker Ice Co., 110 N . Y. 504, 18 N. E. 108;Weil v. Dry-Dock, E. B. & B. R. R. Co., 119 N. Y. 147, 23 N. E. 487.

[3] 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. Sheridan v. Brooklyn City & Newtown R. R. Co., 36 N. Y. 39, 42,93 Am. Dec. 490;Thurber v. Harlem Bridge, M. & F. R. R. Co., 60 N. Y. 326;McGovern v. N. Y. Central & H. R. R. R. Co., 67 N. Y. 417;Byrne v. N. Y. Central & H. R. R. R. Co., 83 N. Y . 620;Dowling v. N. Y. Central & H. R. R. R. Co., 90 N. Y. 670;Stone v. Dry-Dock, E. B. & B. R. R. Co., 115 N. Y. 104, 21 N. E. 712;McCarragher v. Rogers, 120 N. Y. 526, 24 N. E. 812;Swift v . Staten Island R. Tr. R. R. Co., 123 N. Y. 645, 25 N. E. 378;Zwack v. N. Y., Lake Erie & W. R. R. Co., 160 N. Y. 362, 54 N. E . 785;Costello v. Third Ave. R. R. Co., 161 N. Y. 317, 55 N. E. 897;Simkoff v. Lehigh Valley R. R. Co., 190 N. Y. 256, 83 N. E. 15. In the Byrne Case, 83 N. Y. 621, an infant 10 years of age was the plaintiff. Judge Earl there said: ‘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 the language of this learned judge has been cited with approval in the later cases.

The question when an infant ceases to be non sui juris and becomes responsible for its negligence has been the subject of some difference of views in this court. In the Thurber Case it was held that the plaintiff, an infant of eight or nine years of age, was not non sui juris. In Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. 415,2 Am. St. Rep. 440, where the injured child was less than seven years old, the court treated the infant as if it was sui juris. There is a strong intimation that the trial court erred in that respect, but...