
    William Gerber, an Infant, by Abraham Gerber, His Guardian ad Litem, Appellant, v. Harry .M. Boorstein, Respondent.
    Second Department,
    June 27, 1906.
    Negligence — child crossing street injured by wagon — contributory negligence of child nine years of age question for jury — presumption of non sni juris.
    One who steps- frtinr a curb to Cross'a city stteet seventy‘five feet' from" the corner, at a time when the,defendant's team. was,turning said, corner, and who is : subsequently struck and, injured by the, team, is not guilty of contributory negligence as a matter of law in failing" to look, for bad he seen the team at that distance it Would not have been contributory negligence as matter of law to" attempts cross.•
    The -degree -of intelligence and -maturity of ah infant nine years of age is for the jury to, determine, and based upon, such.determination, it,is also, for;, the jury,', to say whether; the, infant wfis. guilty ¡"ofcontributory negligence., These questions are hot for the court, and it is error to nonsuit the plaintiff on the ground of contributory negligence.
    The law presumes'a child under twelvé'years of age to bé non sni juris, and the burden to show hinvsm" Juris is on .one. asserting it.*, ■ • .' : . • , -
    Appeal by the" plain tiff, William "GeHerj ah infant, by Abraham Gerber, his guardian ad litem, from a judgment of the Supreme Court in favor of tile defendant,' entered in the office of the clerk of" the county of Kings on "the loth day óf' March, 1905, upon the dismissal of the complaint by direction of"the court after a trial at the Kings County Trial Term.
    
      Abraham, Oberstein,, for, the appellant,
    
      Frank, Verner Johnson, for the respondent.
   Gaynor, J.:

The facts which the jury could have found are that the plaintiff, a nine years old boy, started to cross, the street 75 feet from the corner of another street; that the first rail of the street car tracks was 13 feet from the curb; that as the plaintiff stepped from the cui’b the defendant’s team turned the said corner into the street and came along fast in the left-hand car track, viz., the one next to the plaintiff; that the plaintiff cleared the left-hand horse, viz.,'the one nearer the curb, but was hit by the off horse and knocked down.

Even if the plaintiff had been an adult the nonsuit would have been error, for if there had been evidence that he looked and saw the team so far away when he was at the curb, it could not have been ruled as matter of law that it was negligence in him to attempt to cross ahead of the team. That being so, it of course cannot be held as matter . of law that his failure to look was “ contributory ” negligence even though" it -could be called negligence. The court cannot nonsuit for negligence which cannot as "matter of law be held to have contributed to the accident.

But there is another insuperable difficulty to sustaining the non-suit. The court could not decide as matter of law that the plaintiff was negligent. The degree of his intelligence and maturity was for the jury, not the- court, to determine, and 6n determining it, it was another question of fact for them, considering his degree of intelligence and maturity as they foii’nd it, whether he was guilty of negligence. If there be any case at all in which the court may rule as matter of law that a child under 12 was negligent, this is not the case. In the case of an infant who has arrived at the-age of 12, the law presumes him sui juris, but the contrary may be proved and found as a matter of fact, the burden of proof being on the side asserting it. In the case of a child under 12, the law does not presume him sui juris. Whether he be suiju/ris is a .question of fact, the burden of proof being on the side asserting it (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308 ; Zwack v. N. Y., L. E. & W. R. R. Co., 160 id. 362 ; McDonald v. Metropolitan St. R. Co., 80 App. Div. 283).

It-seems to me that the judgment should be. reversed.

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

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