
    Mary Wiley, an Infant, by her Guardian ad litem, etc., App’lt, v. Long Island Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    
      1. Negligence—Sui juris.
    A child, non sui juris, is not chargeable with negligence.
    2. Same.
    If sui juris, it is not guilty of negligence, if it uses such discretion as can be expected from one of its years, and acts promptly.
    Appeal from a judgment entered on an order dismissing the complaint at the close of plaintiff’s case.
    
      
      M. L. Towns, for app’lt; W. C. Beecher, for resp’t.
   Pratt, J.

As a nonsuit was granted, the appellant has a right to claim, that the testimony be regarded in the light most favorable to the plaintiff. It was shown that defendant’s train was backed towards the public crossing without a bralceman at the rear, and without notice by bell or whistle. The flagman or gate tender was absent from his post, and the position of the gates, if not an invitation to pedestrians to cross, was at least ambiguous. The negligence of defendant was clearly shown.

We do not see that the infant’s mother can be said to be'negligent. She approached the crossing with care, leading the child by the hand. The tracks were numerous. While she was hesitating whether or not to advance, the child broke from her, and hastened to cross the track. That was not a movement the-mother was bound to anticipate. Her attention was necessarily divided betw'een the child and the 11 tracks, upon each of which a train was liable to approach from either direction at any moment: She could not give her whole care to her hold upon the child, and the fact that for an instant her grasp loosened does not prove negligence on her part.

The question remains whether the child was sui juris, and, if she was, did she fail in using such care as the law required from a person of her age? We are not able to say where she was sui juris. Her age is not given, but most of the witnesses speak of her as a little child, and she was of an age to be led by the hand. The inference would be that she was non sui juris. If so, she was not chargeable with negligence, and the nonsuit was wrong. Huerzeler v. Central C. T. Railroad Co., 139 N. Y. 490, 494 ; 54 St. Rep. 836. If she was sui juris, did she'fail in the care required of her by law ? We think the fair presumption from the testimony is that she saw the train before her mother did, and that her attempt to cross the track was an effort, on her part, to escape the threatened peril. That may have been an error of judgment; but she was a child, and even an adult is not required by law to decide wisely when the occasion calls for an instant action. If she used such discretion as could bes expected from one of her years, and acted promptly, we cannot hold her negligent. It has been said that where one is run down by a train in broad daylight, when the view of the track is not obstructed, negligence may be predicted as a matter of law. But in this case it may not have been easy to see that the train was in motion. The revolution of the wheels is not easily seen. To one standing close to the track the position of the train was a fixed one, or nearly so. And a portion of the attention must be given .to each of the 11 tracks, and to both directions upon each track. Giving due weight to the distracting circumstances, we must hold that the question whether the child exercised such care as the law required from her should not have been taken from the jury.

Judgment reversed, and a new trial ordered; costs to abide the event.

Dykman, J., concurs; Cullen, J., dissents.  