Simply because of the age of eight, no human being may be presumed an automaton incapable of care. Being, at the time of the accident, upward of eight years of age, the plaintiff, while crossing Worth street in the middle of the block in which were other teams, was run over by a wagon coming from Chatham square. He testified that he looked" toward Baxter street, but did not look toward Chatham square, nor did he see or hear the wagon that ran over him until he was struck. Indeed, one of the witnesses testified that he saw him run under the wagon. Although the plaintiff was only between eight and nine years of age, it may not be asserted, as matter of law, that, as a matter of fact, the plaintiff was non sui juris. “ The establishment of the fact that an infant is non sui juris to the satisfaction of the jury, if considered material, is as much a part of the plaintiff’s case as any other evidence is, upon which he relies to make out a case for a recovery.” Simkoff v. Lehigh Valley R. R. Co., 190 N. Y. 256, 258. There is no evidence herein that the child was lacking in capacity to care for itself. True it is that the law discriminates between children and adults and requires of the former only that degree of care reasonably to be expected in view of their age; nevertheless, when the evidence discloses the exercise of no care at all in the direction of the danger to be apprehended and that actually overtook the plaintiff, there was nothing to submit to the jury except for their sympathy. Perez v. Sandrowitz, 180 N. Y. 397, 401.
A dismissal of the complaint would have been proper, but not so the direction of a verdict.
Judgment reversed and new trial ordered, with costs to appellant to abide event.