At the time of the accident plaintiff was one month over eighteen years of age. The court charged that the law did not impose upon him the degree of care to he expected of one of “ full age,” but only such as might be expected of a young man of plaintiff’s age. So far as this case is concerned I think, if the charge was technically wrong, it was harmless error, because I can see in the record nothing of which contributory negligence on plaintiff’s part could be predicated. But was the charge even technically wrong ? On their facts the cases are too conflicting in their results to be of service as controlling precedents, hut I think it is possible to deduce from them certain well-settled principles by means of which we may reach a conclusion commended by common sense, however open it may be to casuistical attack.
Obviously it would be unjust to judge the conduct of a child by the standard prescribed for an adult. To absolve a child, in every case, from the results of his own negligence would be equally unreasonable. A middle and reasonable ground has accordingly been taken, requiring of infants the exercise of such care as children of the same age, of ordinary prudence, are accustomed or would reasonably be expected to exercise under similar circumstances. (Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362.)
In this State we. recognize as a limitation to the above rule the personal equation and hold the infant to only such a degree of care as his individual mental and physical capacity at the time and under the circumstances disclosed, fitted him to exercise. (Dowling v. N. Y. C. & H. R. R. R. Co., 90 N. Y. 670; Swift v. S. I. R. T. R. R. Co., 123 id. 645, 649, 650; Jacobs v. Koehler S. G. Co., 208 id. 416, 420; Ardolino v. Reinhardt, 130 App. Div. 119, 121.)
By common observation we. know that beyond a certain pei’iod of infantile development, instinct or experience, or both, teach every child the dangers arising from various situations *392long before he may be termed sui juris, and for this reason the principle last referred to is held, under certain conditions, applicable to infants non sui juris. (Atchason v. United Traction Co., 90 App. Div. 571; Ardolino v. Reinhardt, supra.)
In testing the conduct of an adult, we take as a standard the man of ordinary prudence, having regard for the circumstances, and also the personal equation. (Davenport v. Ruckman, 37 N. Y. 568, 572, 573; Harris v. Uebelhoer, 75 id. 169, 176.) The general rule, therefore, applicable alike to all children of what I may call sentient age, and to all adults, is that each according to the circumstances of the occasion and his individual capacity, is bound to exercise such a degree of care as is reasonably to be expected of him, having regard for the standards of prudence by which those of his age-class are governed.
The charge under review seems to be in accord with the above broad principles. When applied, the rule they support follows a child from the time personal responsibility attaches, until he reaches his majority, holding him always responsible for a degree of care appropriate to one of his age, modified by his limitations, if any. In Jacobs v. Koehler S. G. Co. (208 N. Y. 416), which involved the case of a boy of fourteen of whom it was held the law did not require a degree of care expected of an adult, Oullen, Ch. J., in the course of his opinion said: “There doubtless comes a time in the life of a child when, though still in law an infant, it reaches such maturity that no distinction on account of age can be drawn in its favor. It is not necessary to determine what that time is. It is sufficient to say that, if a question of law and not of fact, the age is greater than that of deceased. ” Because of the different inferences of which any given state of facts would be susceptible, it would be a rare situation where the question could become one of law. If the question be one of fact, the charge in question is unexceptionable because the learned court instructed the jury to hold plaintiff to a degree of care proportionate to his age. Would the use of the word “ adult ” have worked any different result ? The theory of the charge as given would attach to an infant until his responsibility grew to that of one of full age, when the two would merge insensibly. If logicians can dis*393cover any distinction between the rule applied by the trial court and the rule of adult responsibility, it would seem to me too fine for practical observance and no ground for a new trial in jurisdictions where harmless error is ignored.
The judgment and order should be affirmed, with costs.
McLaughlin, J., dissented.