
    Adolpho Corsale, an Infant, Etc., Appellant, v. Adele Facini et al., Respondents.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Judgment — Rendition—At particular stages of the~action— Judgment on dismissal.
    Negligence—Actions — Evidence — Presumptions and "burden of proof — Upon question of sui juris of plaintiff.
    The court, in an action to recover for personal injuries to a child between eight and nine years of age who, while crossing a •street in the middle of the block, was run over by a wagon, is not justified in holding as matter of law that the plaintiff was sui juris.
    
    
      Whether the child was sui juris or non sui juris was a question of fact to be determined by the evidence in view of the circumstances and the child’s capacity and ability to take care of himself, the burden of proof being upon plaintiff to show that he was non sui juris.
    
    Upon failure to sustain this burden of proof, a dismissal of the complaint would have been proper; but the direction of a verdict for defendants, upon the assumption that plaintiff was sui juris, was error, as the plaintiff’s failure of proof might have been supplied upon another trial.
    Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Court of the city of Mew York, first district, borough of Manhattan.
    Henry C. Burnstine, for appellant.
    Frank V. Johnson (Allan E. Brosmith, of counsel), for respondent.
   Seabury, J.

The plaintiff at the time of the accident was eight years of age. Whether he was sui juris or non sui juris was a question of fact to be determined by the evidence, in view of the existing circumstances and the child’s capacity and ability to take care of himself. The law indulged no presumption one way or the other on this subject. Upon the evidence before the court below, it was not justified in deciding as a matter of law that the infant was sui juris at the time of the accident. Stone v. Dry Dock, East Broadway R. R. Co., 115 N. Y. 104. Consequently, it was error for the court to direct a verdict for the defendants. In directing a verdict for the defendants, the court necessarily assumed that the infant was sui juris. This assumption the court had no right to make. The question was purely one of fact and should have been submitted to the jury for their determination. It is true, where the circumstances would not justify a recovery unless the infant was non sui juris, the burden is upon the plaintiff to prove this fact. If the plaintiff failed in sustaining this burden of proof, proper practice required the dismissal of the complaint, not a direction of a verdict for the defendants. The omission to prove this fact was a mere failure of proof which might have been supplied upon another trial.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve, J., concurs.

MacLean, J. (concurring).

Simply because of the age of eight, no human being may be presumed an automaton incapable of care. Being, at the time of the accident, upward of eight years of age, the plaintiff, while crossing Worth street in the middle of the block in which were other teams, was run over by a wagon coming from Chatham square. He testified that he looked" toward Baxter street, but did not look toward Chatham square, nor did he see or hear the wagon that ran over him until he was struck. Indeed, one of the witnesses testified that he saw him run under the wagon. Although the plaintiff was only between eight and nine years of age, it may not be asserted, as matter of law, that, as a matter of fact, the plaintiff was non sui juris. “ The establishment of the fact that an infant is non sui juris to the satisfaction of the jury, if considered material, is as much a part of the plaintiff’s case as any other evidence is, upon which he relies to make out a case for a recovery.” Simkoff v. Lehigh Valley R. R. Co., 190 N. Y. 256, 258. There is no evidence herein that the child was lacking in capacity to care for itself. True it is that the law discriminates between children and adults and requires of the former only that degree of care reasonably to be expected in view of their age; nevertheless, when the evidence discloses the exercise of no care at all in the direction of the danger to be apprehended and that actually overtook the plaintiff, there was nothing to submit to the jury except for their sympathy. Perez v. Sandrowitz, 180 N. Y. 397, 401.

A dismissal of the complaint would have been proper, but not so the direction of a verdict.

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