I dissent. The plaintiff, at the time the accident occurred, was upwards of eighteen years of age and had had something *394like three years’ experience in the work in which he was then engaged. I think it was error for the court to instruct the jury as matter of law that “ as the plaintiff here is an infant, the law does not require that he conduct himself in the way in which an adult would conduct himself; that is, a person of full age. ” The degree of care which plaintiff was bound to exercise, under the circumstances, was a question of fact to be passed upon by the jury. (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308; Jacobs v. Koehler S. G. Co., 208 id. 416; McDonald v. Metropolitan St. R. Co., 80 App. Div. 233.) It is impossible to say the instruction thus given did not injure the defendant.
I think the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event.
Judgment and order affirmed, with costs.