This is a statutory action to recover damages for the death of Israel Kaplan alleged to have been caused by the negligence of the defendant. On the 15th day of July, 1899, the decedent, who was then six years of age, while crossing upon the north-bound or easterly track of the defendant in South street at the foot of Market street was struck by one of the horses attached to a north-bound car; and run over by the car, inflicting injuries which resulted in his death. It was on Saturday, a bright pleasant day, and the accident occurred between one and three o’clock in the afternoon. The family consisted of a father, mother and two other children, a boy of eight years and a girl one year old. The father was at work. About one o’clock in the afternoon the mother accompanied her three children to Rutgers Park, about a block and a half from their home on Water street. The plaintiff gave evidence tending to show that after they arrived at the park the mother permitted the decedent to accompany his elder brother and play with other boys within the park, and cautioned them not to go near East river, *135which is adjacent thereto; that the mother remained with the little girl and the boys disappeared from her view, playing around the park ; that within half an hour the elder boy returned to his mother and informed her of the accident to the decedent, which occurred at the foot of Market street, two blocks distant from the park; that immediately prior to the accident the decedent and his brother were in a crowd of from five to twenty boys coming from Pier 37, East river, toward Market street, within the lines of that street continued.
The testimony of some of the witnesses is to the effect that, as the boys approached and crossed the track, they were walking, and of others that they were running, being chased by the person in charge of a bath house on the pier; and that they were in plain sight of the driver. The inference is that some were ahead of others, but that all crossed the tracks in the same general direction toward Market street, at the usual crossing from Market street to the pier. The other boys crossed the track in safety, but the decedent, who was last and close behind, was struck between the rails. There is evidence that as he was about to step on the track the car was twenty feet distant and that it was ten or twelve feet distant when he was in the middle of the track. The driver testified that he could stop the car within six or seven feet. Evidence was given tending to show that no effort was made to stop the car until after the boy was struck. On the entire evidence a question of fact was presented for the determination of the jury as to whether or not the driver did not see, or would not have seen, had he exercised -due care, the boy upon the track or about to cross, in time to have stopped the car or to have avoided the accident. The negligence of the defendant, therefore, was a question for the jury.
The boy being only six years of age, the presumption is that he was non sui juris (Costello v. Third Ave. R. R. Co., 161 N. Y. 317; Tucker v. N. Y. C. & H. R. R. R. Co., 124 id. 308; Zwack v. N. Y., L. E. & W. R. R. Co., 160 id. 362), and there is no evidence to rebut the presumption at least as matter of law. It must, therefore, be assumed for the purpose of deciding the correctness of the nonsuit that he was non sui juris, in which case negligence cannot be imputed on account of his own failure to exercise care. (Lafferty v. Third Ave. R. R. Co., 85 App. Div. 592, and cases cited; *136affd., 176 N. Y. 594) The ease, therefore, should -have been submitted to the jury unless the mother of decedent was guilty of contributory negligence as a matter of law. We are of opinion that the question as to whether she exercised proper care for the safety of her child was also one for the jury. It cannot be affirmed as a matter of law that she should have foreseen the danger of decedent’s accompanying the other boys down South street and across these tracks or that she was called upon to further caution him and his elder brother. She permitted them to play only in the park and cautioned them against going to the river, which she likely thought was the greatest danger. Of course, it could not be affirmed that the father was guilty of negligence, for he was absent earning a livelihood for his wife and children, and it appears that he had cautioned the boys against going to the river without one of their parents. Doubtless through their interest in play or at the suggestion of others they disobeyed these instructions, for they did go near the river and were returning from it when the accident occurred.
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Patterson, O’Brien and Hatch, JJ., concurred; Van Brunt, P. J., dissented.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.