Ellen F. Grealish, as Administratrix, etc., of Isabella S. Grealish, Deceased, Appellant, v. Brooklyn, Queens County, and Suburban Railroad Company, Respondent

Ellen F. Grealish, as Administratrix, etc., of Isabella S. Grealish, Deceased, Appellant, v. Brooklyn, Queens County, and Suburban Railroad Company, Respondent. Second Department, January 8, 1909. Bailroad—negligence — death, of child caused by trolley car—contributory negligence of infants — evidence — burden to show that child under twelve years old is sui juris — trial—failure to request submission of issue. In an action to recover for the death of a child eight and one-half years old, who was killed by a street car, the jury is not to determine her contributory, negli-. gence upon an abstract theory as to the intelligence of a child of that age, but rather upon the intelligence and understanding of the particular child, to be determined from, the evidence. Her duty to exercise care depends upon her personal capacity to appreciate the danger; and if she acted in accordance with that intelligence she fulfilled her duty to the defendant, while, on the contrary, if she failed properly to exercise that intelligence she was guilty of contributory negligence, which bars a recovery. Where the court has failed to charge that the j ury may consider the negligence of parents in letting such child go to-school, accompanied only by a sister ten years old, a defendant wishing to raise the question should ask that it be submitted. Appeal by the plaintiff, Ellen F. Grealish, as administratrix, etc., from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 1st day of July, 1908, granting the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff for $4,000, and'for a new trial made upon the minutes. Patrick L. Ryan [ William Brunner with him on the brief], for the appellant. D. A. Marsh [George D. Yeomans with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The decedent, a little girl 8£ years old, was crossing the street with a bunch of little children from the school house they attended to drink at a fountain opposite. A street car ran through them. There were one or more narrow escapes, and the decedent was killed. The learned trial Judge set the verdict for the plaintiff aside on the sole ground that the case was tried on the theory that the child was sui juris, and as there was no evidence of care on her part the verdict was unsupported. There is nothing in the record to support this statement. Counsel for the plaintiff announced no such theory, nor did counsel for the defendant entertain it, for one of the grounds of his motion to dismiss at the close was “ that it has not been shown that this child if non sui juris was in the care of any competent person at the time of the happening of the accident”; nor did the learned trial Judge entertain it, for all that he charged on the subject was in the following clear and admirable instruction for the case of a child, viz.: “.It is difficult for you to determine from the evidence which you have heard as to this child’s mental qualities, what degree of intelligence the child had as to the appreciation of danger from a trolley car, wha-t degree of intelligence she had as to the need of caution on her own part. You are not to consider what is the abstract intelligence of a child of years. That is not the law, each case depends upon itself, and upon the evidence in that particular case, and so here it is not what an abstract child of 8-g- years, but wliat this particular child understood, and that you must find from the evidence in the case, for according to the intelligence which she possessed, that is the appreciation of danger, and the appreciation of. care and caution, she owed it to the company to exercise that knowledge and to exercise that degree of care. If she did that, then she omitted no duty which she owed to the company, and would not have been guilty of what is called contributory negligence. If, on the other hand, just before the accident, and until the accident happened, the child failed to exercise its own intelligence, as you find it to-have existed in that child, then the child did' omit a duty which it owed to the company and the plaintiff in this action cannot recover ”. And in addition to all of this the law is that children under 12 years of age are presumptively non sui juris, i. e., not yet arrived at what is called the age of adult discretion, and the burden of proof is on the side claiming that a child under that age was as matter of. fact sui juris [Gerber v. Boorstein, 113 App. Div. 808). In a child’s life- there is a wide zone between a complete lack of intelligence and the intelligence and care of a person who has reached the period of full discretion. That zone keeps narrowing all the time until it is finally obliterated. Meanwhile thé rulé is jüst as the learned trial Judge charged it, provided the child has reached any intelligence and discretion, and may therefore be subjected to a rule at all. If the counsel for the defendant wanted it left to the jury whether the parents of the child were negligent in letting the,child go to school accompanied only by her ten year old sister (which can hardly be supposed) it'was for him to ask it after seeing that the Judge omitted to charge on that head: The order should be reversed and the verdict reinstated. Woodward, Rich and Miller., JJ., concurred. Order reversed and verdict reinstated, with costs.