
    Lillie Morrissey, an Infant, by Patrick Morrissey, her Guardian ad Litem, Appellant, v. Margaret Smith, Respondent.
    
      Negligence — injury from falling into a hole maintained by the defendant in a city street — knowledge by the pa/rty injured of its existence — when on appeal a child will not be presumed to ham been sui juris.
    In an action to recover damages sustained by the plaintiff in consequence of her falling into a hole which the defendant unlawfully kept and maintained unguarded in the sidewalk of a city street, the fact that the plaintiff knew of the existence of the hole about three weeks before the accident, does not establish that she was guilty of contributory negligence as matter of law, where it appears that at the time she fell she was carrying a basket; that her little brothers were walking in front of her and that she was not “ quite sure” of the location of the hole at the time.
    Where the reeord on an appeal from a judgment dismissing the complaint discloses the fact that the plaintiff is an infant, but does not establish her age, the Appellate Division will not assume that she is sui juris in the face of evidence that she was a school girl and was referred to by the witnesses as “this little girl; ” that one of her playmates was nine years old at the time of the trial, which occurred nine months after the accident, and that the plaintiff was carried to and from the hospital.
    Appeal by the plaintiff, Lillie Morrissey, an infant, by Patrick Morrissey, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of March, 1901, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Kings County Trial Term.
    
      J. M. Birnbaum, for the appellant.
    
      Bertram L. Kraus and H. B. Wesselman, for the respondent.
   Hirschberg, J.:

Ho question is presented as to the defendant’s negligence, it being conceded on the argument for the purposes of this appeal, and the nonsuit having been granted solely on the ground that the plaintiff is chargeable with contributory negligence as matter of law. She fell into a hole which the defendant negligently and unlawfully kept and maintained unguarded in the sidewalk on West Sixty-second street, in the borough of Manhattan. The accident occurred on the afternoon of June 23, 1900, but the plaintiff knew of the existence of the hole as early as June third, and her negligence appears to have been predicated upon that fact chiefly, if not wholly.

The mere fact that she knew of the; existence of the opening in the sidewalk is not sufficient to make the question of her contributory negligence one of law. On the occasion in question she was carrying a basket; her little brothers were with her, walking in front of her, as she says “ about the spot when I stepped in ; ” she was not quite sure ” of the location of the hole at the time, and altogether the occurrence was such as in accordance with well-established principles required a submission to the jury, under proper instructions, of the question whether she exercised such care as the law enjoins, and if she did there could be a recovery notwithstanding her previous knowledge or momentary forgetfulness. (Boyle v. Degnon-McLean Construction Co., 47 App. Div. 311; Weed v. Village of Ballston Spa, 76 N. Y. 329; Palmer v. Dearing, 93 id. 7; Bullock v. Mayor, 99 id. 654; Pomfrey v. Village of Saratoga Springs, 104 id. 459, 469; Shook v. City of Cohoes, 108 id. 648; Dollard v. Roberts, 130 id. 269.)

The record discloses the fact that the plaintiff is an infant, but her age is not proven, and the respondent claims that this court may, therefore, assume that she was sui juris, and indeed, to quote from the brief, that “ she may have been in the last year of her infancy.” To so assume would be to violate the well-known rule in. cases of nonsuit (Kunz v. City of Troy, 104 N. Y. 344, 352), that “ the plaintiff is entitled to the most favorable inferences deducible from the evidence.” It does appear, however, that she was a school girl; she is spoken of in the testimony as “ this little girl; ” one of her playmates, examined as a witness, was nine years old at the time of the trial, which occurred nine months after the accident; .and the plaintiff was carried on the occasions when she was taken to and from the hospital. These facts rather require us, under the rule stated, to assume that the plaintiff may have been of such tender years as to require the question of her status within the law of negligence to be submitted to the jury for its consideration and determination, in which event if she were found non sui juris, in the absence of negligence on the part of her parents, the doctrine of contributory negligence would have no application. (Kunz v. City of Troy, supra, 351.)

The judgment should be reversed.

Goodrich, P. J., Bartlett, Woodward and Sewell, JJ., concurred.

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