It is conceded that the train which collided with the plaintiff was running at a rate of speed which was in excess of that permitted by an ordinance of the city of Lockport; and there is also some evidence tending to show that the flagman who was generally stationed at this crossing was not at his post of duty at the time of the accident. There was consequently sufficient evidence of the defendant’s negligence to have required the submission of that question to the jury, and so the trial court held, but the nonsuit was granted upon the ground that it affirmatively appeared that the plaintiff’s injuries were plainly the result of her own negligence.
If it may be assumed, as it was at the trial, that at the time of the accident the plaintiff was capable of exercising proper care and judgment for her own protection, it cannot be doubted that the trial court was fully justified in dealing with the question which was presented by the evidence of the plaintiff’s witnesses as one of law and not of fact; for it is seldom that so plain a case of contributory negligence finds its way into court. Indeed, it is established by the evidence of every witness who saw anything of the accident, that *189the plaintiff, so far from exercising any care or judgment for her own safety, rushed heedlessly on to the south track without making the slightest effort to ascertain whether or not a train was approaching, although it is undisputed that the train was then in plain slight and could easily have been avoided had she looked in the direction from which it was coming.
It is insisted, however, that in view of the tender years of the plaintiff the question of her contributory negligence was one of fact which should have been submitted to the jury; and this contention presents for our consideration a question which is sometimes quite difficult of solution, although in the present instance it has been relieved from some of the perplexities which would ordinarily encompass it by the assumption of the trial court and the apparent acquiescence therein by counsel for both parties.
By express provision of the criminal law of this State infants under the age of seven years are deemed incapable of committing crimes, and such incapacity presumptively continues until the age of twelve years (Penal Code, §§ 18, 19), but although it has been recently held that the rule of the criminal law which limits the period of presumptive incapacity might be applied with safety to civil actions (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308, 318), yet the courts have found it impossible to adopt and arbitrarily apply this rule in every instance, for experience has shown that each case is of necessity dependent in a very large measure upon its own circumstances. Some children, for instance, are endowed by nature with greater capacity than others at the same age for appreciating and guarding against a dangerous situation which may suddenly confront them; while, upon the other hand, the physical and mental condition of one child may have been such as to deprive it of the power to protect itself in the presence of danger which another and younger one would have exercised under the same conditions.
But although each case may differ from every other in its circumstances, there are nevertheless some principles which are applicable to all, one of which is that the mere fact that a child is of a certain age does not necessarily justify the inference that it is incapable of exercising any degree of care for its own preservation (Stone v. Dry Dock, etc., R. R. Co., 115 N. Y. 104), and another is that the question of whether or not a child is sui juris is generally, within *190certain limits, one of-fact and not of law. (Stone v. Dry Dock, etc. R. R. Co., supra; Penny v. Rochester Ry. Co., 7 App. Div. 595 ; affd., 154 N. Y. 770.)
It must be conceded, however, that, like almost every other rule, the one last stated is not without its exceptions, and the present case, for reasons which we shall briefly state, seems fairly subject to the exception instead of the rule.
The plaintiff, although but two or three months past seven years ■of age at the time of receiving her injuries, was apparently a bright, intelligent girl. She lived in the vicinity of the crossing; she was entirely familiar with it and had been obliged to pass over it on her way to and from school at least twice each day for several weeks prior to the accident; she had frequently seen the cars pass over the highway at this point, and had occasionally been obliged to wait until they passed before she could get across; and it was doubtless this familiarity with her surroundings which bred within her that contempt for danger which is so often exhibited by much older persons, and which, in all probability, was the principal reason which induced her to run upon the track in the heedless and reckless manner described by all of her witnesses.
The circumstances just narrated would seem to indicate that the plaintiff Avas not only competent to take care of herself, but that she Avas so regarded by her parents; and although on account of her age it may be said that she would not be required to exercise the same degree of care which would be exacted of an adult in like circumstances, the defendant still has the right to insist that she be required to exercise at least such care as is commensurate with her age and intelligence, and that she should not by her failure so to do become the “ heedless instrument ” of her “ own injury.” (Hartfield v. Roper, 21 Wend. 620 ; Weiss v. Metropolitan Street R. Co., 33 App. Div. 221.)
. In our consideration of the case thus far we have treated it as one in which the presence of contributory negligence was so marked as possibly to have justified the trial court in withholding from the jury the question of the plaintiff’s responsibility for her acts, notwithstanding her extreme youth. We do not, however, wish to be understood as determining that question, nor is it necessary that we should; for, as has already been suggested, it appears from the *191record that the case was tried by both counsel and court upon the assumption that the plaintiff was sui juris.
In disposing of the defendant’s motion for the nonsuit, the learned trial justice delivered an exhaustive oral opinion, in which, after reviewing the facts as well as the law of the case, he used this language : “ It is true and has been well adjudicated, I think, in all cases, where the question has been up, that a child is not bound to exercise the same degree of care under circumstances where she is surrounded by. danger, or in peril, that an adult would be, hut there is no case where it has heen held ■that a child sui jxoris is exempt f rom the exercise of any care.”
This language was followed by a declaration that the nonsuit must be granted, to which decision the learned counsel for the plaintiff contented himself with a general exception.
It does not appear that any request was made to have the question of the plaintiff’s responsibility submitted to the jury, nor that any express exception was taken to the decision of that question by the court. The case consequently falls directly within the principle enunciated in Wendell v. N. Y. C. & H. R. R. R. Co. (91 N. Y. 420), and it is difficult to see how, under the circumstances, any other result could have been reached by the trial court; for, if it be assumed that the plaintiff had sufficient mental and physical capacity to be chargeable with the exercise of some degree of. care and responsible for some degree of negligence, it is as certain as anything can be that her unfortunate accident was the result of her own gross carelessness, for which the defendant cannot and ought not to be held liable.
The judgment should be affirmed, with costs.
All concurred, except Ward, J., who dissented in an opinion.