The learned justice submitted it to the jury fco determine, as a question of fact, whether or not the decedent, who was just under six years of age, was sui juris, and instructed the jury that if they should find that she was .non sui juris they were to consider in determining the' question of contributory negligence both her own conduct and that of her parent or guardian. In other words, the jury were instructed that even if the child was non sui juris she was still bound to exercise that degree of care for her own safety-that a child of her own age and intelligence and of ordinary prudence for one of such age and intelligence would have exercised, the phrases sui juris and non sui juris being used to mean, respectively, that the child was or was not of sufficient age and discretion to care for her own safety and render it prudent or not prudent to permit her to go about alone, and that if she did not exer*164cise that degree of care, there could be no. recovery, and furthermore that if she did exercise that degree of care,.still, if the parent or guardian was .negligent in permitting her to bp upon the public street unattended, there could be no recovery.
While much confusion has been introduced by the consideration of the question oí sui juris and. non sui juris in the administration of the law relating to actions for negligence, yet I understand it to be still the Well-settled rule of law' that on the question of contributory negligence, only the negligence of one party is to be ulti- ' mately considered. If the circumstances are such as to justify the court in deciding the question of ,the competency or inconipetency of the child to' care for himself when, upon the public streets as matter of law, then, accordingly as that question is decided, the question of the contributory negligence of the child or of the parent or guardian is to be submitted to the . jury, but not both. When the question as to whether the child was of sufficient age^ arid discretion to be permitted to be upon the public streets unattended is to be .submitted to the jury as a question of fact, then the jury should be instructed that if they find that the child was sui juris, that.is, possessed of sufficient age and intelligence to be .permitted to go about alone in the vicinity where he received the injury, the question of contributory negligence depends upon the conduct of the child, and is to be determined by applying to him the standard of ordinary prudence on the part of a child of the same age, with like intelligence;, but if it be determined by the jury that the child was non sui juris, that is, he did’ not possess sufficient age and discretion to be permitted to go about alone, then the question of contributory negligence depends upon the conduct of the parent or guardian in looking after the custody of the .child'. The Court of Appeal's, in Serano v. N. Y. C. & H. R. R. R. Co. (188 N. Y. 156, 165), cited by Mr. Justice Ingraham in the prevailing opinion, recently stated the rule to be, that a child of tender years is not required to exercise the same degree of care and prudence in the presence of danger which is expected and required of an adult under like circumstances, but she is required, to exercise such care and prudence as is commensurate with one of her age and intelligence.” I d‘o not understand that this was the announcement of any new doctrine. It has long been the rule that a child who .is *165of sufficient age and intelligence to warrant his parent or guardian in permitting him to go about the public streets unattended, is not required to use the same degree of intelligence in'protecting himself from danger as an adult. Thé Court of Appeals, in the Serano case, has not decided,’ as I understand the decision, that the jury may consider on the question of contributory negligence both the conduct of the parent and the conduct of the child) or in other words, that a child, not of sufficient age or discretion to be jiermitted to be upon the public streets-alone, is still required to exercise care and discretion, - and if he does may either be deprived of recovering, because his parent or guardian did not keep him from '■ the place where he met with the injuries while exercising proper care, according to his age and discretion, for his own safety. If that be the interpretation of this decision, .it follows that the jury , must in all cases consider the’conduct of a child, even though its age is to be reckoned in hours or days, instead of months or years; and a babe in arms is to be precluded.from recovering if at the critical time he makes a move which, in the opinion of the jury, a child of ordinary prudence of his age would not have made even though the mother or nurse was free from negligence. The Court of Appeals in Neun v. Rochester Railway Co. (165 N. Y. 146) unanimously expressly approved a charge as a sound rule of law, that if an infant be non sai juris he cannot be charged with personal negligence. The same rule, was announced by that court in Mangam v. Brooklyn R. R. Co. (38 N. Y. 455) and in McGarry v. Loomis (63 id. 105). In Lafferty v. Third Ave. R. R. Co. (85. App. Div. 592) this court sustained a very clear charge of the trial court to the same effect and the decision was affirmed by the Court of Appeals (176 N. Y. 594). I shall, therefore, adhere to my views expressed in Lafferty v. Third Ave. R. R. Co. (supra) until the Court of Appeals overrules its former decisions or'expressly decides the question otherwise.
The court having thus erroneously instructed the jury on the question of contributory negligence, properly granted plaintiff’s motion for a néw trial.
Order reversed and verdict reinstated, with costs.