I dissent and vote to affirm upon the ground that the court properly charged the jury that ordinarily a child of less than four years of age is considered to be non sui juris, but that where, as in this instance, the plaintiff introduced evidence as to the memory and intelligence of the child, the question whether or not this particular child was sui juris was a question for the jury. (Camardo v. New York State Railways, 247 N.Y. 111,116; Prosser on Torts, § 36, p. 231; Harper, The Law of Torts, § 141, p. 310.) In Camardo v. New York State Railways (LEHMAN, J.) (supra) we said at p. 116: "* * * A child's age does not alone determine its capacity to care for itself and to avoid dangers which may threaten. The law does not disregard variations in capacity among children of the same age, and does not arbitrarily fix an age at which the duty to exercise some care begins or an age at which an infant must exercise the same care as an adult. * * * Determination whether under the particular circumstances in each case reasonable men might differ as to the inferences that can be drawn is decisive of whether upon the evidence *Page 439 a question of fact or of law is presented. It is sometimes said that at least a presumption exists that a particular child isnon sui juris, or that another child is not capable of exercising the care which an adult would exercise in the face of the danger which threatened. It would perhaps be more accurate to say that under some circumstances, in the absence of any evidence bearing upon the capacity of a particular child except its age, an inference may be drawn, in the light of common experience, as to the child's ability to apprehend and avoid the danger which resulted in its injury. (Citing a case). Here, too, however, it must be noted that from the cases decided in this court no general rule can be deduced that at a definite andfixed age the basis for an inference that a child is incapable of caring for itself under particular circumstances fails. * * *No rule of law fixes an arbitrary age at which a particular degree of care may be expected, or furnishes a truepresumption which takes the place of evidence, that a child is not chargeable with contributory negligence. Only where the circumstances admit of only one inference may the court decide as a matter of law what inference shall be drawn." (Emphasis supplied.)
LOUGHRAN, Ch. J., THACHER and DYE, JJ., concur with DESMOND, J.; CONWAY, J., dissents in memorandum, in which LEWIS, J., concurs.
Judgments reversed, etc.