Whether the complaint should have been dismissed after the evidence was all in, on the ground that the negligence of the plaintiff’s intestate contributed to the accident, presents the only question which we shall discuss on this review.
In its disposition we shall consider first whether, assuming the intestate to have been sui juris, the evidence adduced authorized the jury to find that plaintiff’s intestate was free ■from contributory negligence. If not, whether the fact that the intestate was only a little over twelve years of age, considered in connection with the other circumstances proven, could be permitted to effect a different result.
The plaintiff, in order to recover for the damages sustained by the killing of his intestate, which was occasioned by his being run. over and killed by a locomotive on the defendant’s *314road while crossing its tracks on Smith street in the city of. Buffalo, was burdened with the necessity of proving, first, that' the defendant was guilty of negligence; and, second’, that he-was free from all fault contributing to that result.
The law requires a traveler before crossing a railroad track on a public highway to look and listen for the approach of trains. If he omit to do so and suffers injury while crossing, he cannot recover because of such omission. That which it is. his duty to. do, he or, in the case of death, his representative must, in an action to recover for damages sustained, prove-was done or at least must prove facts from which inference, can reasonably be drawn that he performed his duty in that, respect. It will not be presumed that he looked, it must be-proven. The plaintiff attempted to meet this requirement by the evidence of a witness who testified that before the intestate crossed the track, in the doing of which he was struck by the locomotive and killed, he stopped in the centre of the switch track eleven feet from the north rail of the track upon which, the locomotive was running and shifted the bag which, he was carrying from one shoulder to the other, resting it upon the: bumper of a car standing on the track as he did so, and that, at this time his face was turned in the direction of the approaching engine. He then passed on in a southerly direction for the distance of about fourteen feet when he was struck. The: witness further testified that after changing the bag from one: shoulder to the other, he did not again turn his head toThe left as it would have been necessary for him to do in order to see the. approaching locomotive. It is urged that inasmuch as it. appears that his face was turned in the direction from whence the locomotive came, that a jury could be permitted to find that he did look and thus observe that measure of care and caution which the situation imposed. We are unable to agree-with that contention, for it appears that from the place where-he was standing it was possible to see along the track a distance of 186 feet; that when he reached the south rail of the switch track, a distance of eight feet and five inches from, the north rail of the track upon which the locomotive was-*315running, lie could see for two streets away, and that before reaching such rail the view was unobstructed for nearly a mile. It seems "to be clear, therefore, that the plaintiff did not meet the burden resting upon him by merely showing that his face was turned in that direction, for if he had looked he must have seen this engine approaching. But if the inference was permissible that he looked at the moment of changing the bag, it does not meet the requirements of the case. He had still six tracks to cross and was then eleven feet from the south rail of the first track. To look then and not again, to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use, was not a proper observance of that care which it was liis duty to exercise. (Cullen v. D. & H. C. Co., 113 N. Y. 668; Cordell v. N. Y. C. & H. R. R. R. Co., 70 id. 119; Woodard v. N. Y., L. E. & W. R. R. Co., 106 id. 369; Young v. N. Y., L. E. & W. R. R. Co., 107 id. 500.)
And this the plaintiff’s intestate did according to the evidence of the witness Martin, who was called by the plaintiff to prove. that at the moment of shifting the bag Tucker was facing in the direction of the approaching locomotive. Indeed, it must have been so, for had he looked at any moment before reaching the track, he would have observed its coming.
It appears that-the wind was blowing severely and snow was falling rapidly, and it is suggested that by reason thereof he may have been prevented from seeing the approaching locomotive, but the evidence introduced, on the part of the plaintiff, shows that such was not the fact. There were two little girls on the cars at the crossing at the point where the boy stood when shifting the bag from one shoulder to the other, and they saw the locomotive coming. Frank Surrnes was on Smith street near the place of the accident at the time of its occurrence, and he testified that he saw it approaching when it was at Oneida street. The witness Martin also saw it when 350 feet distant. Ho witness pretends that it could not be seen, and no room exists for the inference that the plaintiff’s intestate could not have seen it had he looked.
*316We are thus led. to the conclusion that there was no evidence authorizing the jury to find that the plaintiff observed ¡that degree of care and caution which the law imposes on one while in the act of crossing railroad tracks on a public street. .If he had been an adult, therefore, it would have been the •duty of the court to have dismissed the complaint. Does a •different rule apply because the intestate was a boy only a little •over twelve years of age? An infant of tender years is not •expected to exercise the same care and caution which is .required of a person of more advanced age, so that it fre•quently becomes a question for the jury, under proper instructions by the court, whether a child exercised that measure of ■care and caution which should be required and expected ¡from it.
In the case of McGovern v. N. Y. C. & H. R. R. R. Co. (67 N. Y. 417), a boy eight years of age, while crossing a railroad track, was struck by a backing engine and killed. In "that case this court held that it was a question for the jury to ■determine whether he exercised that degree of care and cir•cumspection which a child of his years and maturity of judgment would be expected to exercise.
In the case of Wendell v. N. Y. C. & H. R. R. R. Co. (91 N. Y. 420) the plaintiff’s intestate, a boy of seven years of .age, was held to have been guilty of culpable negligence, it •appearing that he was a bright, active boy, capable of understanding the peril of the situation which he recklessly encountered, resulting in his death.
In Stone v. Dry Dock Railroad Company (115 N. Y. 104) the plaintiff’s intestate, a child of seven years, was run over by a street car, and in that case it was held that he could not be deemed as a matter of law to be sui juris so as to be chargeable with negligence, but that it presented a question for the jury.
In the Reynolds case (58 N. Y. 248) a bright and intelligent boy, thirteen years of age, was killed while crossing a railroad ¡track. The summer before he had worked on a farm and ■received thirteen dollars a month and board for his services. *317"but at the time of the accident he was living at home attending school. The plaintiff was unable to show that his intestate-observed that care which was required of persons crossing a railroad track, and the court having under consideration the-distinction, which the law makes between those who are sui juris and non sui juris, held that the plaintiff should have; been nonsuited.
The fact that the boy Tucker was twelve years old, intelligent, accustomed to attend school, and assist the family by his-labor, and lived near the railroad, seems to bring this case within the rule of the Reynolds case, indeed we see no opportunity to distinguish them.
Aside from evidence of the- boy’s age,, no fact was- adduced' tending to show that he was not as well qualified to understand and appreciate the danger which overtook him as an adult. And the question is, therefore, fairly presented whether a jury-can be permitted to find from such fact, standing alone, that he was non sui juris.
In Nagle v. A. V. R. R. Co. (88 Penn.. St. 35) the court, in considering the age at which an infant should be presumed to-be sui jm'is, say: The law fixes no- arbitrary- period when the immunity of childhood ceases and the responsibilities of" life begin. For some purposes majority is the rule. It is not so here. It would be irrational to- hold that a man was-responsible for his negligence at twenty-one years of age, and not responsible a day or a week prior thereto. At what age-then must an infant’s responsibility for negligence be presumed to commence ? This question cannot be answered by referring it to a jury. That would furnish us with no rule-whatever. It would give us a mere shifting standard affected by the sympathies or prejudices of the jury in each particular-case. One jury would fix the period of responsibility at fourteen, another at twenty or twenty-one. This is not a, question of fact for the jury ; it is a question of law for the-court. Nor is its solution difficult. The rights, duties and responsibilities o-f infants are clearly defined by the text writers; as well as by numerous decisions.. We have seen that the law *318"presumes that at fourteen years of age an infant has sufficient ■discretion and understanding, to select a guardian and contract ;a marriage, is capable of ha-rboring malice and of taking human life under circumstances that constitute the offense of murder. It, therefore, requires no strain to hold that at fourteen an infant is presumed to have sufficient capacity and understanding to be sensible of danger, and to have- the power to avoid "it. And this presumption ought to stand until it is overthrown by clear proof of the absence of such discretion and intelligence as is usual with infants of fourteen years of age.”
The Penal Code provides that when an infant is charged with crime, upon the prosecution rests the burden of showing that the defendant has sufficient intelligence and maturity of judgment to render him capable of harboring a criminal intent until the age of twelve years, at which time the presumption -of incapacity ceases. Now, while this statute does not undertake to prescribe, and does not necessarily affect the rule to be ^applied in civil actions, it suggests, as asserted in the Nagle ■case, an ago to which the courts can with safety limit the presumption of incapacity on the part of an infant to appreciate the perils incident to crossing railroad tracks. This presumption may, in a proper case, be so far overborne by evidence as to present a question for the jury, and then the age of the injured party may doubtless be considered by the jury in ■connection with the facts indicating a lack of comprehension of a dangerous situation. But in the absence of evidence tending to show that an injured infant twelve years old was not qualified to understand the danger and appreciate the .necessity for observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui Juris.
The views expressed lead to the conclusion that the judgment should be reversed.
All concur except Bradley and Yaw, JJ., dissenting.
.Judgment reversed.