
    Aaron Hirtenstein, as Administrator, etc., of Louis Hirtenstein, Deceased, Respondent, v. Interurban Street Railway Company, Appellant.
    First Department,
    November 5, 1906.
    Negligence — whether child was sui juris left to jury by consent — contributory negligence for jury.
    In an action to recover for the death of a vigorous boy three years and nine months old, who was struck by a street car while crossing a city street, where the court, at the request of the defendant and by consent of the plaintiff, has charged that the j ury must determine from the evidence whether or not the boy was mi juris, it is error for the court to refuse to charge that if the jury found the boy to be sui juris then they must determine from the evidence whether he observed the degree of care' proper to his age, and if not that the verdict must be for the defendant.
    Appeal by the defendant, the Interurban Street Eailway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of January, 1906,. upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 18th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Max D. Steuer, for the respondent.
   Ingraham, J.:

The plaintiff’s intestate was three years and nine months old. He was struck by one of the defendant’s cars while attempting to cross Houston street in the city of New York, and sustained injuries which resulted in his death. The charge of the learned trial judge was very concise as to the rules of law which should govern the jury in determining the questions presented to them. -The jury were not instructed as to whether the plaintiff’s intestate was required to exercise any care in the use of the street. The court, however, instructed the jury that “the boy was of such tender years that lie is called, in the phraseology of the law, non sui juris, which may be taken to mean here that he was not of that age and- capacity to be capable of contributing negligence himself. * * * So it comes to you to determine, practically, in the first instance, whether the parents were at fault at all in allowing this child to be in the street or in hot taking such care of him that he should not be in the street unattended on this occasion. If you • find that they were not at fault, you will then' determine whether the driver acted, with the reasonable care of a person of ordinary prudence under the' circumstances.’’ The court then, at the request of the plaintiff, charged: “ A child three years and nine months of age is in the law considered non -suijtoris, meaning that the child is not of sufficient discretion to be responsible for its own acts, and cannot, therefore, be guilty of negligence.” To this charge the defendant excepted. The defendant then requested- the court to charge: “ II. The jury must determine from the evidence whether or not the plaintiff was sui juris, and the burden of satisfying their minds in this regard is upon the plaintiff.” Counsel for the plaintiff said : “ I consent to the charging of the second * *. * (request) in the language requested,” whereupon the court stated “ Upon the consent of the plaintiff and on the request of the defendant, the court charges you,” the court then repeating to the jury the second request. The court having charged the jury as a matter of law that the child was non sui juris, at the request of both parties' left to the jury the question whether or not the child was sui juris. The counsel for the defendant then reqnested’the court to charge: “ Y. If the jury find that the plaintiff was' sui juris, then they must determine from the evidence whether he observed the degree of care proper to his age and condition; and if they believe, that the plaintiff has not proven by a preponderance of evidence that he did exercise such care and caution, then their verdict must be for the defendant. VI. Even .if the jury find that the child was non sui juris, still, before they can find a verdict for the plaintiff, they must find that the child exercised, the care and caution of an ordinarily prudent child of the same age and circumstances.” These requests the court refused and the defendant excepted. If it was a question for the jury as to whether or not the child was ■ sui juris, and the last instruction to the jury was that that was a question for the jury to determine, then the defendant was entitled to have the ■ jury instructed that if they found that the child was sui juris he was bound to exercise such care and caution as could be expected of a child of his age under the circumstances existing at the time of the accident. At the time of the accident the child was in good health. His father testified that he was a vigorous boy, in good spirits, a lively boy, and would rim around with boys of his age.

From the evidence it would appear that when this boy started to cross the track the car was about forty-six feet away; that the boy ran rapidly from the sidewalk; that when he reached the middle track he dropped something, and then stooped to pick it up, or fell down and the car came upon him. One witness testified that he saw the boy as he was trying to cross the street; that he stooped down and was looking to pick up something, and just then the car came down at full speed. A police. officer on the platform of the car testified that he saw the boy leave the sidewalk, clear the first track and stumble as he got on the second track and fall downward, when the horses were six feet from the boy; that as soon as the boy started to leave the curb the driver commenced to put on the brake, and as soon as it became apparent that the boy was on the track the driver tried to stop the car; that from the time the driver started to stop the car until.it came to a stop it wen't about twenty feet. This witness ivas corroborated by another passenger who was upon the front platform, by the driver of the car and by an employee of the street cleaning department in the immediate neighborhood, who testified that he saw the boy run across the north rail, and that he slipped between the two rails and fell across the south rail. Upon this testimony there is serious doubt whether the evidence is sufficient to sustain a finding that the defendant was negligent, but having left it to the jury to say whether the child was sui juris the jury should have been instructed as to the duty of the child, and that negligence on his part would bar a recovery. I think, considering the method in which this case was submitted to the jury, that there should be a new trial.

The judgment and order are reversed and a new trial directed, costs to' appellant to abide event.

O'Brien, P. J., Clarke, Houghton and Scott, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  