I concur in the opinion of Mr. Justice Houghton in so far as he holds the judgment and order should be reversed and a new trial granted, but I do not agree with him as to the rule to be applied in an action based on negligence to recover damages for personal injuries to an infant who is non sui juris. This term, so used, simply means that the infant is not of sufficient age, intelligence and discretion to know and appreciate danger and to exercise reasonable care for himself in avoiding it. (Schreiner v. N. Y. C. & H. R. R. R. Co., 12 App. Div. 551.)
The court, under certain circumstances, by reason of the age, lack of intelligence or development of an infant,-is justified in holding, as- matter of law, that he is non sui juris, but usually such question is a fact to be determined by the jury. But in either case, if it be determined the infant is non sui juris, then no negligence can be imputed to him, except as. his parents or guardian may be negligent in permitting him to go unattended or uncared for; in other words, the infant having been found to he non sui juris, the inquiry then relates to the negligence of the parent or custodian, and not to that of .the infant himself.
I am unable to see upon what process of reasoning an infant who is incapable of taking care of himself, or to know or appreciate danger, or exercise any care to avoid it, can be said to be in any way negligent.
I, therefore, concur in the result.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.