Appeal from Trial Term, Queens County.
Action by Andrew Batchelor, an infant, by John Batchelor, his guardian ad litem, against the Degnon Realty & Terminal Improvement Company. From a judgment entered on a nonsuit, plaintiff appeals. Reversed, and new trial granted.
Defendant maintained cars on a temporary track in an avenue terminating at a street at right angles. A train stood with its rear at the street, and a five year old child was injured while crossing by the sudden backing of the train. There was nothing to show that any lookout was maintained. Held that, as defendant owed the duty of care, the court could not say as a matter of law that he was not negligent.
[115 N.Y.S. 94] George
F. Hickey (M. P. O'Connor, on the brief), for appellant.
Allan E. Brosmith, for respondent.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and MILLER, JJ.
The plaintiff was five years old when injured. The defendant was running its dirt cars, such as are used by contractors, along Middleburg avenue on a temporary track. Moore street does not cross Middleburg avenue, but runs into it at or near right angles and ends there. A train of these cars was standing with its rear at Moore street. The plaintiff was crossing Middleburg avenue at Moore street, and as he got on the defendant's tracks, and about six feet in the rear of the said train, it was suddenly backed up and ran over him. On these facts a nonsuit was granted. This was error, for the defendant owed the duty of cake, and there was no evidence that there was any one at the crossing, or at the rear of the train, or anywhere, to look out for people crossing, or any evidence on that head.
The court could not rule as matter of law that the plaintiff was guilty of contributory negligence. In Tucker v. N.Y. C. & H. R. R. Co., 124 N.Y. 308,28 N.E. 916,21 Am.St.Rep. 670, the case of an infant a little over 12 years of age, the court, after a full discussion of the age at which a child may as matter of law be presumed sui juris in a case like this, concluded as follows:
" But in the absence of evidence tending to show that an injured infant 12 years old was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui juris."
The opinion throughout fixes 12 years as the age before which an infant will not be and after which he will be deemed sui juris as matter of law, unless the contrary be proved. In the case of an infant plaintiff under 12 the plaintiff would have no reason to prove him sui juris, but the contrary, and in the case of an infant plaintiff of 12 or over the defendant would have no reason to prove him non sui juris, but the contrary; so that it would seem plain on which side the necessity of proof would lie in each case, assuming the legal presumption to be as stated in the absence of any evidence on the subject except that of age. In Zwack v. N. Y., L. E. & W. R. Co., 160 N.Y. 365, 54 N.E. 785, the case of a 10 year old boy, the case of Tucker is mentioned with apparent full approval as follows:
" The reasoning of the court in the case of Tucker v. N.Y. C. & H. R. R. Co., 124 N.Y. 308, 26 N.E. 916,21 Am.St.Rep. 670, is to the effect that an infant under the age of twelve years is presumed to be non sui juris, so the question with respect to his capacity at that age becomes one of fact. It is true that an infant, even of more tender years, may be shown to be sui juris. The fact must in such cases depend upon the capacity and intelligence of the child, and, hence, becomes a question for the consideration of the jury in connection with all the facts and circumstances of the case."
And the case before the court was then disposed of on this basis. Now, if the law be, as stated in the foregoing quotation, that the law presumes a child under 12 years to be non sui juris, unless the contrary be proved, the rule would seem to be deducible that it is for the defendant to make such proof in order to avoid such legal presumption; and in the same way, that it is for the plaintiff [115 N.Y.S. 95] to show that an infant plaintiff over 12 is non sui juris; and such deduction has been made. Hill v. Baltimore & N.Y. R. Co., 75 A.D. 325, 78 N.Y.Supp. 134; McDonald v. Metropolitan St. R. Co., 80 A.D. 233, 80 N.Y.Supp. 577; Gerber v. Boorstein, 113 A.D. 808, 99 N.Y.Supp. 1091.In the McDonald Case Mr. Justice Hatch stated the rule clearly as follows:
" In the case of infants under the age of 12 years, the burden of proof is upon the defendant to show the possession, by such infant, of sufficient mental capacity to understand, appreciate and guard against the situation in which it is placed, and the plaintiff may rest in respect of such question upon the legal presumption, which protects the infant from the imputation of negligence, unless it be a case where the negligence of the infant is imputable to the parent. When an infant is 12 years of age or above, the burden is upon the plaintiff to show the mental capacity of the infant and establish as a fact that such infant was not possessed of sufficient mental capacity to exercise the degree of care and caution which is chargeable upon an adult, and it then becomes a question for the jury to determine whether the degree of care exercised in the particular case was such as to exonerate the infant from the charge of contributory negligence measured by its age and capacity."
But in the very recent case of Simkoff v. Lehigh Valley R. Co., 190 N.Y. 256, 83 N.E. 15, where the plaintiff was an infant 7 years old, the reverse is explicitly held, viz., that there was no legal presumption that he was non sui juris, but that the burden was on the plaintiff to ...