In the argument before the Appellate Division it seems to have been assumed that the case was tried upon the theory that the injured boy was sui juris, and the court assumed that such was the fact. If the record justified that assumption, I should agree with that court that the complaint was properly dismissed, on the ground that the plaintiff was guilty of contributory negligence, as matter of law, and for the reasons assigned in the prevailing opinion, but the record does not justify the claim made by the respondent's counsel that it was conceded upon the trial the plaintiff was sui juris. The record upon that subject is as follows: Upon the opening of the trial the court made the following inquiry: "Is it conceded that the boy was capable of taking *Page 324 care of himself? Mr. Blandy: To the extent that the boy was able to conduct himself across the street without the apprehension of bodily injury; to that extent he was able to take care of himself. The court: Then he was sui juris for that purpose? Mr. Blandy: We expect to have the boy charged with that degree of care that in a boy of his age and intelligence we should expect. I understand that to be the rule of law." The answer of the counsel did not acquiesce in the suggestion of the court. On the contrary, it advised both the court and opposing counsel that he did not expect his client to be charged with a greater degree of care than his age and intelligence legally called for. As he was only eight years of age, the presumption of law was that he was not sui juris, and upon the defendant rested the burden of establishing that he was a bright and intelligent boy and suijuris, notwithstanding the fact that he was but eight years of age. (Tucker v. N.Y.C. H.R.R.R. Co., 124 N.Y. 308; Zwack v. N.Y., L.E. W.R.R. Co., 160 N.Y. 362.)
The presumption that the plaintiff was non sui juris was not met by direct evidence, but the plaintiff was a witness, and his testimony, as well as the manner of giving it, gave the jury an opportunity to measure his intelligence, and it was for them to say whether he was in fact sui juris, and if they should conclude that he was not, then the further question remained for their consideration whether he exercised that degree of care and caution which should be expected from one of his age, experience and intelligence.
For these reasons I concur in a reversal of the judgment.
All concur with BARTLETT, J., for reversal (PARKER, Ch. J., in memorandum), except GRAY, J., dissenting.
Judgment reversed, etc. *Page 325