Appeal from Trial Term, New York County.
Action by John Ardolino, by his guardian, against George N. Reinhardt. From a judgment for plaintiff on the verdict of a jury, and from an order denying a new trial, defendant appeals. Reversed.
[114 N.Y.S. 509] Frederick Hulse, for appellant.
Samuel Wechsler, for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.
The action is to recover damages for personal injuries caused through the negligence of defendant's servant. The claim of the plaintiff is that while he was sitting in the roadway of a public street, playing marbles, the defendant's driver negligently ran over him, and the defendant insists that the accident happened because the plaintiff was attempting to climb on the rear end of the wagon. At the time of the accident, the plaintiff was 4 1/2 years of age.
In his main charge the learned trial court instructed the jury that, if plaintiff's parents were negligent in permitting him to go into the public street to play, their negligence was imputable to him, and at the close of the charge, on request of plaintiff's counsel, the court charged that the plaintiff was non sui juris at the time of the accident, and that no personal negligence could be imputed to him, to which charge the defendant's counsel excepted. Defendant requested the court to charge that the plaintiff, notwithstanding his age, was not relieved from the obligation of exercising any care whatever in relation to vehicles, which request the court refused, and the defendant took an exception. We think these exceptions present errors for which the judgment must be reversed. In an action for personal injury based on negligence, freedom from contributory negligence on the part of the party injured is an element of the cause of action. If the injured person be an adult, he must prove, either directly or through facts and circumstances from which an inference may be fairly drawn, that he used some care to avoid the injury of which he complains, and, when such proof is made, it becomes a question for the jury to determine whether he used reasonable care under all the circumstances surrounding the accident. This burden is upon an infant who seeks to recover damages because of negligence as well as upon an adult, varying only in degree, which degree depends upon natural capacity, physical development, training, habits of life, surroundings, and the like. Of course, a child of immature years, cannot, and should not, be called upon to use such care in avoiding a danger as an adult ought to use. Nor can a dull or crippled child be expected to be so alert to danger as a bright and active one of the same age. Where an infant is so young that it has no judgment and cannot be expected to avoid danger, manifestly the only negligence which can be imputed to it is that of the person having it in charge. But there comes a time in the development of every child not an imbecile when it must have learned some things. Although it may lack judgment to act with care and circumspection in regard to avoiding danger, yet it may be quite sensible of the necessity of avoiding contact with many objects which experience has taught will inflict harm. From their surroundings and experience certain children might very easily learn to avoid passing vehicles, and that there was [114 N.Y.S. 510] great danger in a moving car. When an infant complains of wrongs to himself, the defendant has a right to insist that, notwithstanding his immaturity, he should not have been the heedless instrument of his own injury.
Much can be found in the books respecting an infant deemed sui juris or non sui juris, and unfortunately many misleading expressions have been made concerning the obligation upon him in an action for negligence when he is found to be in one state or the other. In all actions to recover damages because of the negligence of another we must start with the propositions that a complainant cannot be the heedless instrument of his own injury and that freedom from contributory negligence is an element of his cause of action. His freedom from contributory negligence is evidenced by the fact as to whether under all the conditions surrounding the accident reasonable care was exercised to avoid it. It logically follows that a child who has attained some degree of development and intelligence is not relieved from exercising and proving that he exercised such care as could be reasonably expected from one of his years and intelligence and experience. The true rule in all actions for personal injuries based on negligence, therefore, is that an infant, whether sui juris or non sui juris, must exercise such reasonable care in avoiding the injury of which he complains, as can fairly be expected of a child of his age, natural capacity, intelligence, physical condition, training, experience, habits of life, and surroundings. All the later and better considered decisions so hold. Stone v. Dry Dock, etc., R. R. Co., 115 N.Y. 104, 21 N.E. 712:Costello v. Third Ave. R. R. Co., 161 N.Y. 324, 55 N.E. 897; Buscher v. N.Y. Transportation Co., 114 A.D. 85, 99 N.Y.Supp. 673; Atchason v. United Traction Co., 90 A.D. 571, 86 N.Y.Supp. 176.
Cases arise where children are so young that they have no capacity to appreciate danger or to avoid it, and hence are non sui juris as matter of law, in which case the negligence of their parents or custodian is a matter of inquiry, and, if any exists, it is imputable to the infant. Other cases arise in which it may be a question of fact for a jury as to whether an infant is sui juris or non sui juris, and, even if found to be non sui juris, still such infant is bound to exercise such care in avoiding the injury of which he complains as he can reasonably be expected to exercise in view of his years and capacity and intelligence and experience. Very possibly this rule sweeps away much that has been written concerning the doctrine of sui juris and non sui juris, but no different rule can be the correct one in actions for personal injuries based on negligence.
It follows that the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.
PATTERSON, P. J., and CLARKE, J., concur.
I concur with Mr. Justice HOUGHTON, and simply wish to add that in this case the plaintiff was allowed by his parents to play in the street of a city unattended, and it was while so playing that the accident happened. The question was properly submitted to the jury as to whether or not his parents were negligent in [114 N.Y.S. 511] allowing a child of his age and intelligence to play unattended in a public street, and the jury have found that they were not negligent. This could only be justified if the plaintiff was of such an age and had such intelligence that he could look out for himself while playing in the street, and in such a case it seems to me clear that the infant was bound to exercise the care and caution to be expected from a child of his age and intelligence which justified the parents in allowing him to play there unattended. If he was absolutely without ability to exercise any care to avoid vehicles in the street, then it would have been the duty of the jury to have found that it was negligent for the parents to allow him to play there unattended; but, if he had sufficient intelligence to care for himself while playing there, then, it seems to me, he was bound to exercise that care to avoid the ...