
    Charles Stone, as Adm’r, etc., App’lt, v. The Dry Dock, East Broadway and Battery Railroad Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    1. Injury—What is voluntary.
    An injury is voluntary only when the party inflicting it is aware of the danger to which another is suhjeet, and realizing the inevitable result performs the act causing the injury.
    
      2. Contributory negligence—Plaintiff must show freedom from— Infants.
    In an action brought by the administrator of an infant to recover damages for the death of the infant caused by the negligence of the defendant, it is necessary, if the infant was sui juris, that the plaintiff should prove freedom from contributory negligence on the part of the ini ant, and if not sui juna that the parents or guardian should be shown to be free from contributory negligence,
    8. Infants—When infant mat be considered sui juris.
    A child of the age of seven years and three or four months may be mi juris.
    
    4. Same—When question properly withheld from jury.
    
      Held, that there being no evidence on this question, it was rightly withheld from the consideration of the jury.
    The deceased was, at the time of her death, a child of seven years and three or four months old; and, upon the day upon which she was injured, had been at play in the basement of her father’s store in the basement of the house No. 39 Canal street, one block distant from the scene of the accident.
    The deceased left this basement and proceeded to the southeasterly corner of Orchard and Canal streets and attempted to cross the street; a car of the defendant was approaching rapidly, the face of the driver being turned and his attention directed to the inside of the car, and struck the deceased and inflicted such injuries that she died.
    There is no evidence that the deceased looked in either direction before attempting to cross the street, and the proof showed that if she had looked that there was nothing to have prevented her from seeing the approaching car.
    No evidence was given upon the subject of the capacity or intelligence of this child. Upon the completion of the plaintiff’s evidence the complaint was dismissed, and from the judgment thereupon entered this appeal is taken.
    
      Adolph L. Sanger, of counsel, for app’lt; John M. Scribner, of counsel, for resp’t.
   Van Brunt, P. J.

—The claim made by the appellants that a recovery could be had in the case at bar because, as the driver, if he had been attending to his business instead of looking in the car, could easily have seen the deceased and avoided the danger, and the injury was, therefore, a voluntary one, cannot be sustained.

An injury can be voluntary only when the party is aware of the danger to which another is subject, and realizing the inevitable result performs the act which inflicts the injury.

In the case at bar there is no evidence that the driver was aware of the danger of the deceased until too late to avoid the injury.

He may have been guilty of negligence in not paying proper attention to his duties, but there is no evidence of voluntary injury.

The only question then is did the plaintiff prove that the deceased was not guilty of contributory negligence.

If the infant was sui juris, then clearly, under the authority of Wendell v. N. Y. Central R. R. Co. (91 N. Y., 420, she was guilty of contributory negligence in not avoiding the danger.

But it is urged that the case cited has no application to the case at bar because the court decided the Case of Wendell on the theory that the infant was sui juris, the evidence in the case having fully justified that assumption, and that the situation in the case at bar is different, there being no evidence that the plaintiff was sui juris, the court alone, without any evidence and without any authority, having decided for itself that the infant was sui juris and having thus usurped the function of the jury.

It is difficult to see how, if no evidence upon this subject was offered, the court usurped the function of the jury as the jury are to pass upon the evidence and cannot be allowed to guess for the want of evidence.

It was incumbent, upon the part of the plaintiff, to prove want of contributory negligence, and this he could only do if the infant was sui juris by showing that the child took reasonable precaution in crossing the street, or, if not sui juris, that the parents had not been guilty of negligence in permitting the child to be on the street unattended.

As no evidence whatever was offered as to the capacity or intelligence of the child, there was no evidence upon which the jury could base a finding one way or another. A child of seven years and four months may be sui juris (Wendell v. N. Y. Central R. R. Co., supra), and if the child_ was sui juris she took no precaution whatever in crossing the street to avoid the danger of approaching cars, as she was bound to do.

The plaintiff’s case seems to have been fatally defective in this particular, and the jury were properly relieved from the duty of speculating in the absence of evidence upon this subject.

The judgment appealed from must be affirmed with costs.

Bartlett, J., dissenting.

Daniels, J.

—Special reliance has been placed upon the case of Kenyon v. New York Central Railroad Company, (5 Hun, 479, affirmed in 76 N. Y., 607), as sustaining the right of the plaintiff to the submission of this case to the jury. But as the child injured in that case was of no more than the age of two and one-half years, while this intestate was seven years and three or four months old at the time of this accident. No such effect could be accorded to that authority. These additional years of the intestate must have greatly added to her judgment and increased her experience over the condition of the child in the other case, and impressed her with the necessity of observation and caution for the avoidance of personal danger and exposure to the risks of accidents. As far as that experience and judgment had been acquired, she was bound in judgment of law to make use of it before undertaking the always more or less dangerous act of crossing a railway track. The law exacted no unreasonable precautions, but such only as her years and experience might reasonably be expected to supply.

The case, in this respect, was placed under the control of the decision made in Wendell v. N. Y. Central, etc., R. R. Co., (91 N. Y., 420), where a child of seven years was held to be subject of this degree of care in crossing or placing himself on a railway track. The great object of the law has been to protect persons against the chances of personal injury. And to promote that end, it has required the reasonable observance of care on the part of all persons exposed to personal injuries from the omission of proper care on the part of others.

To that extent but no further it has placed the responsibility on the person liable to be so injured or in cases of such immature years as to be incapable of the observance of that care, there the same duty is exacted in the way of protection from the parent, guardian or other custodian of the person. And when it has been observed by neither, there can be no recovery for a negligent injury. This obligation to observe care was, also, held to rest upon a boy of eight years of age in Motel v. Sixth Avenue Railroad Co. (99 N. Y., 632). The principle, as it has been here applied, even though it may seem harsh was as legally applicable to the intestate.

She attempted to cross the railway without looking for the approach of the car when by looking she could have seen it several blocks away. The view was unobstructed for that distance. The car was near her point of crossing when she stepped on the track, and was plainly observable, if she had directed the slightest attention to it or in the direction from which it came. The testimony of the witnesses observing the accident, unites in proving that she did not look, but endeavored to cross the track without bestowing any attention on the subject of approaching cars. And that omission was under these authorities such a failure to observe care as precluded the plaintiff from maintaining the action, even though the driver was himself careless^ also, as the jury could very well have found him to have been.

For these reasons and those assigned by the presiding justice, the judgment should be affirmed.  