
    Michael Dunn, Jr., an Infant, by Michael Dunn, Sr., His Guardian ad Litem, Respondent, v. Jacob Ruppert, Appellant.
    First Department,
    February 5, 1915.
    Trial — charge — contributory negligence of infant eighteen years of age.
    In an action to recover for personal injuries caused by negligence, a verdict for the plaintiff will not be set aside merely because the court charged that the plaintiff, who had just passed his eighteenth year, was not required to conduct himself in the same way in which an adult would be required to conduct himself, but was only required to use the care which an ordinarily prudent person of his own age would exercise, if the charge as to contributory negligence taken as a whole was proper, for there was no error affecting the substantial rights of the defendant. McLaughlin, J., dissented, with memorandum.
    Appeal by the defendant, Jacob Ruppert, 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 3d day of June, 1914, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.
    
      
      Grant C. Fox, for the appellant.
    
      Don R. Almy [ William S. Evans with him on the brief], for the respondent.
   Hotchkiss, J.:

At the time of the accident plaintiff was one month over eighteen years of age. The court charged that the law did not impose upon him the degree of care to he expected of one of “ full age,” but only such as might be expected of a young man of plaintiff’s age. So far as this case is concerned I think, if the charge was technically wrong, it was harmless error, because I can see in the record nothing of which contributory negligence on plaintiff’s part could be predicated. But was the charge even technically wrong ? On their facts the cases are too conflicting in their results to be of service as controlling precedents, hut I think it is possible to deduce from them certain well-settled principles by means of which we may reach a conclusion commended by common sense, however open it may be to casuistical attack.

Obviously it would be unjust to judge the conduct of a child by the standard prescribed for an adult. To absolve a child, in every case, from the results of his own negligence would be equally unreasonable. A middle and reasonable ground has accordingly been taken, requiring of infants the exercise of such care as children of the same age, of ordinary prudence, are accustomed or would reasonably be expected to exercise under similar circumstances. (Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362.)

In this State we. recognize as a limitation to the above rule the personal equation and hold the infant to only such a degree of care as his individual mental and physical capacity at the time and under the circumstances disclosed, fitted him to exercise. (Dowling v. N. Y. C. & H. R. R. R. Co., 90 N. Y. 670; Swift v. S. I. R. T. R. R. Co., 123 id. 645, 649, 650; Jacobs v. Koehler S. G. Co., 208 id. 416, 420; Ardolino v. Reinhardt, 130 App. Div. 119, 121.)

By common observation we. know that beyond a certain pei’iod of infantile development, instinct or experience, or both, teach every child the dangers arising from various situations long before he may be termed sui juris, and for this reason the principle last referred to is held, under certain conditions, applicable to infants non sui juris. (Atchason v. United Traction Co., 90 App. Div. 571; Ardolino v. Reinhardt, supra.)

In testing the conduct of an adult, we take as a standard the man of ordinary prudence, having regard for the circumstances, and also the personal equation. (Davenport v. Ruckman, 37 N. Y. 568, 572, 573; Harris v. Uebelhoer, 75 id. 169, 176.) The general rule, therefore, applicable alike to all children of what I may call sentient age, and to all adults, is that each according to the circumstances of the occasion and his individual capacity, is bound to exercise such a degree of care as is reasonably to be expected of him, having regard for the standards of prudence by which those of his age-class are governed.

The charge under review seems to be in accord with the above broad principles. When applied, the rule they support follows a child from the time personal responsibility attaches, until he reaches his majority, holding him always responsible for a degree of care appropriate to one of his age, modified by his limitations, if any. In Jacobs v. Koehler S. G. Co. (208 N. Y. 416), which involved the case of a boy of fourteen of whom it was held the law did not require a degree of care expected of an adult, Oullen, Ch. J., in the course of his opinion said: “There doubtless comes a time in the life of a child when, though still in law an infant, it reaches such maturity that no distinction on account of age can be drawn in its favor. It is not necessary to determine what that time is. It is sufficient to say that, if a question of law and not of fact, the age is greater than that of deceased. ” Because of the different inferences of which any given state of facts would be susceptible, it would be a rare situation where the question could become one of law. If the question be one of fact, the charge in question is unexceptionable because the learned court instructed the jury to hold plaintiff to a degree of care proportionate to his age. Would the use of the word “ adult ” have worked any different result ? The theory of the charge as given would attach to an infant until his responsibility grew to that of one of full age, when the two would merge insensibly. If logicians can discover any distinction between the rule applied by the trial court and the rule of adult responsibility, it would seem to me too fine for practical observance and no ground for a new trial in jurisdictions where harmless error is ignored.

The judgment and order should be affirmed, with costs.

McLaughlin, J., dissented.

Ingraham, P. J.:

I concur in the affirmance of this judgment. I do not think we are justified in selecting one sentence from the charge, dissociated from the rest of the charge, and reversing a judgment otherwise satisfactory. The trial judge instructed the jury that they must find that the accident occurred “without any negligence upon his [plaintiff’s] part. * * * You are to determine whether or not the plaintiff was free from contributory negligence. ” Then comes the portion of the charge that is criticised: “When I say that both parties had a right to be on that street, I will tell you also that the duty is upon them to conduct themselves in the way in which reasonable and careful persons would conduct themselves. That is true of both parties. As the plaintiff here is an infant, the law does not require that he conduct himself in the way in which an adult would conduct himself; that is, a person of full age. It does require from him the degree of care and of prudence and the degree of judgment and discretion that would be expected of persons of his age; that is, of persons who had reached the age in life that he has reached, as an ordinarily prudent person of that age, that is the degree of care that would be required of him.”

Taken as a whole, I do not think the- jury can have been misled by what the court said, and as we are required, on an appeal, to “give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties ” (Code Civ. Proc. § 1317), I do not think we are required to reverse this judgment.

Laughlin and Scott, JJ., concurred.

McLaughlin, J. (dissenting):

I dissent. The plaintiff, at the time the accident occurred, was upwards of eighteen years of age and had had something like three years’ experience in the work in which he was then engaged. I think it was error for the court to instruct the jury as matter of law that as the plaintiff here is an infant, the law does not require that he conduct himself in the way in which an adult would conduct himself; that is, a person of full age. ” The degree of care which plaintiff was bound to exercise, under the circumstances, was a question of fact to be passed upon by the jury. (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308; Jacobs v. Koehler S. G. Co., 208 id. 416; McDonald v. Metropolitan St. R. Co., 80 App. Div. 233.) It is impossible to say the instruction thus given did not injure the defendant.

I think the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event.

Judgment and order affirmed, with costs.  