Stone v. Dock

• Decision Date: 04 June 1889
• Citation: 115 N.Y. 104,21 N.E. 712
• Parties: STONE v. DRY DOCK, E. B. & B. RY. CO.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 104

21 N.E. 712

STONE

v.DRY DOCK, E. B. & B. RY. CO.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme court, general term, First department.

Plaintiff sued to recover damages alleged to have been sustained by him by the death of his minor child, Sarah Stone, who was run over by one of the defendant's cars, in Canal street, in the city of New York, through the alleged negligence of defendant. The cause was tried before Mr. Justice PATTERSON and a jury. At the close of the evidence on behalf of plaintiff, the justice, on defendant's motion, dismissed plaintiff's complaint, and, judgment having been thereafter entered in favor of defendant, plaintiff appealed therefrom to the general term of the court below, where, decision having been rendered in favor of respondent, plaintiff appealed.

Adolph L. Sanger, for appellant.

Robinson, Scribner & Bright, for defendant.

ANDREWS, J.

The nonsuit was placed on the ground that an infant seven years of age was sui juris, and that the act of the child in crossing the street in front of the approaching car was negligence on her part which contributed to her death, and barred a recovery. We think the case should have been submitted to the jury. The negligence of the driver of the car is conceded. His conduct in driving rapidly along Canal street at its intersection with Orchard street, without looking ahead, but with his eyes turned to the inside of the car, was grossly negligent. Mangam v. Railroad Co., 38 N. Y. 455; Railroad Co. v. Gladmon, 15 Wall. 401. It cannot be asserted as a proposition of law that a child just passed seven years of age is sui juris, so as to be chargeable with negligence. The law does not define when a child becomes sui juris. Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. Rep. 442. Infants under seven years of age are deemed incapable of committing crime, and by the common law such incapacity presumptively continues until the age of fourteen. An infant between those ages was regarded as within the age of possible discretion; but on a criminal charge against an infant between those years the burden was upon the prosecutor to show that the defendant had intelligence and maturity of judgment sufficient to render him capable of harboring a criminal intent. 1 Archb. Crim. Pr. & Pl. 11. The Penal Code preserves the rule of the common law, except that it fixes the age of twelve instead of fourteen as the time when the presumption of incapacity ceases. Penal Code, §§ 18, 19. In administering civil remedies the law does not fix any arbitrary period when an infant is deemed capable of exercising judgment and discretion. It has been said in one case that an infant three or four years of age could not be regarded as sui juris, and the same was said in another case of an infant five years of age. Mangam v. Railroad Co., supra; Fallon v. Railroad Co., 64 N. Y. 13. On the other hand, it was said in Cosgrove v. Ogden, 49 N. Y. 255, that a lad six years of age could not be assumed to be incapable of protecting himself from danger in streets or roads; and in another case that a boy of eleven years of age was competent to be trusted in the streets of a city. McMahon v. Mayor, 33 N. Y. 642. From the nature of the case it is impossible to prescribe a fixed period when a child becomes sui juris. Some children reach the point earlier than others. It depends upon many things,-such as natural capacity, physical conditions, training, habits of life, and surroundings. These and other circumstances may enter into the question. It becomes, therefore, a question of fact for the jury where the inquiry is material, unless the child is of so very tender years that the court can safely decide the fact.

The trial court misapprehended, we think, the case of Wendell v. Railroad Co., 91 N. Y. 420, in supposing that it decided as a proposition of law that a child of seven years was capable of exercising judgment so as to be chargeable with contributory negligence. It was assumed in that case, both on the trial and on appeal, that the child whose conduct was in question was capable of understanding and did understand the peril of the situation, and the evidence placed it beyond doubt that he recklessly encountered the danger which resulted in his death. The boy was familiar with the crossing, and, eluding the...