The plaintiff at the time of the accident was eight years of age. Whether he was sui juris or non sui juris was a question of fact to be determined by the evidence, in view of the existing circumstances and the child’s capacity and ability to take care of himself. The law indulged no presumption one way or the other on this subject. Upon the evidence before the court below, it was not justified in deciding as a matter of law that the infant was sui juris at the time of the accident. Stone v. Dry Dock, East Broadway R. R. Co., 115 N. Y. 104. Consequently, it was error for the court to direct a verdict for the defendants. In directing a verdict for the defendants, the court necessarily assumed that the infant was sui juris. This assumption the court had no right to make. The question was purely one of fact and should have been submitted to the jury for their determination. It is true, where the circumstances would not justify a recovery unless the infant was non sui juris, the burden is upon the plaintiff to prove this fact. If the plaintiff failed in sustaining this burden of proof, proper practice required the dismissal of the complaint, not a direction of a verdict for the defendants. The omission to *102prove this fact was a mere failure of proof which might have been supplied upon another trial.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Gildersleeve, J., concurs.