
    Benjamin Goldstein, an Infant, by Max Goldstein, His Guardian ad Litem, Appellant, v. The Dry Dock, East Broadway & Battery Railroad Co., Respondent.
    (City Court of New York, General Term,
    May, 1901.)
    Negligence — A child of four years run over by a horse car while being led by a child of eight years.
    In an action, by an infant aged four years, to recover for injuries received by being run over in the daytime by a horse-car of the defendant, it appeared that he was being led by his sister aged eight years, that it was twelve and one-half feet from their sidewalk to the rail where the accident happened, that when the children started to cross "the street the car was distant from twenty-five to one hundred feet, that its horses were going very fast down an incline, that the driver was looking back into the car and had not his hand on the brake, that the plaintiff became confused, broke away from his sister, got on the track and was run over.
    Held, that it was erroneous to dismiss the complaint. . . _ That the driver was clearly negligent, and that the questions whether the girl of eight years was sui juris, and, if so, whether she was negligent, should have been submitted to the jury.
    Appeal from a judgment in favor of the defendant, dismissing the complaint after a trial before the court and a jury.
    Abraham Levy (Charles Haldane, of counsel), for appellant.
    Henry A. Robinson (John T. Little, of counsel), for respondent.
   Per Curiam.

This action was to recover damages for injuries received by the plaintiff through the alleged negligence of the defendant in the operation of one of its horse cars. At the close' of plaintiff’s case, his complaint was dismissed, and from the judgment entered thereon this appeal is taken.

We have before us the same questions presented to the trial justice, namely, whether there was sufficient evidence to go to the jury upon the defendant’s negligence and the plaintiff’s freedom from contributory negligence, and in the determination thereof the plaintiff is entitled to the most favorable inferences to be drawn from the testimony. The record shows that on May 12, 1897, between three and four p. h., the, plaintiff, a child four years old, with his sister, nine years old, started to cross the street in the middle of the block, and at that time the car in question was, according to some of the witnesses, about three or four houses away, and, according to another witness, about a house away. The horses were going very fast, and the driver was looking into the car and not in-the direction it was going, namely, towards the children; the plaintiff became confused, broke away from his sister, got upon the track, was knocked down by the nigh horse attached to the car and run over. The car was going down hill a little bit, and the driver did not have his hand on the brake. As the front wheel passed over the plaintiff the car was brought to a stop. Erom where these children started to cross the street to the car rail in question was twelve and a half feet. On the motion to dismiss, the defendant’s counsel stated that the plaintiff at the time of the accident was non sui juris, and that it was a question whether then the little girl was.

A consideration of this evidence leads us to the conclusion that a question of fact was presented which should have been submitted to the jury. The conduct of the driver of the car in driving rapidly along a thoroughfare of a busy city without: looking ahead, but with his eyes turned to the inside of the car, was grossly negligent. Mangam v. Brooklyn R. R. Co., 38 N. Y. 455. When we remember that the car at this time was proceeding on an incline, and that the driver, in addition to the foregoing, did not have hold of the brake, the negligence was accentuated, if that were possible.

Whether the little girl was sui juris was for-the jury to determine; her years were not so tender that the court could decide that as a matter of law. As was said in Stone v. Dry Dock, East Broadway & Battery R. R. Co., 115 N. Y. 104: “In administering civil remedies, the law does not fix any arbitrary period when an infant is deemed capable of exercising judgment and discretion. * * Erom 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.” Assume that the girl was sui juris. Should it not have been left to the jury to determine whether she acted with that degree of care which might reasonably be expected under the circumstances of one of her age? The jury would have been justified in finding that when the plaintiff and his sister started to cross the street the car in question was anywhere from twenty-five to one hundred feet away, assuming the width of lots in that vicinity to he twenty-five feet, and that the space between the sidewalk and track was twelve and a half feet. Under the circumstances the girl might well have supposed that she and her brother could cross the track before the car reached that point. There was negligence established on the part of the driver, and whether or not the girl exercised, under the circumstances, such a degree of care as might be reasonably expected of one of her age, should, in our opinion, have been submitted to the jury. ;

For the reasons stated, the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Present: Fitzsimons, Ch. J., Delehanty and Schuchman, JJ.

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