On Motion for Rehearing.
Messrs. Bernstein & Cohen presented a brief contra. Mr. Justice Wolvertondelivered the opinion.
It was not onr purpose by the main opinion handed down herein, as it seems to be suggested by the petition for rehearing, to hold to the doctrine “ that, where the interests and actions of an infant are involved, atrial judge can in no case declare as a matter of law that there has been contributory negligence.” We said, it will be observed, “there are cases, properly decided, too, where the courts have said as a matter of law that the minor, considered as yet immature, was guilty of such contributory carelessness and negligence that he ought not to recover,” and in support thereof we cited several authorities. In line with this view are some of the cases cited by counsel in their petition for rehearing. Notably is the case of Rudd’s Adm’r v. R. & D. R. Co. 80 Va. 546, where a boy of twelve, sent by his parents to mind the cows in a held along a railway, went to sleep on the track, and was run over and killed by a freight train, and it was held that, notwithstanding his immature years, he was guilty of such contributory negligence that his administrator could not recover. Another is Masser v. Chicago R. I. & P. R. Co. 68 Iowa, 602 (27 N. W. 776), where a boy between eleven and twelve years was killed while crossing the tracks of a railroad. The court said in that case : “A boy eleven years of age knows as well as an adult does what a railroad is, and the use to which it is put, and the consequence to a person who should be struck by a passing train, and knows that he should not stop to play or lounge amid a network of tracks. It is true that a boy of that age cannot be presumed to have the judgment of an adult; but it does not require much judgment to keep from walking in a dangerous place, the dangers of which are fully understood. If the question was as to whether the deceased was guilty *240of contributory negligence in the mere act of stepping backward upon the defendant’s track when the Fort Dodge train passed, the case would be different. The deceased evidently lost his presence of mind somewhat, and he might not have been guilty of negligence in what he did then, even though he did not govern himself with the prudence which might reasonably have been expected of an adult. But his negligence consisted in going, in the outset, and in remaining, where he incurred the danger of losing his presence of mind.” Of like import are the cases of Twist v. Winona & St. Peter R. Co. 39 Minn. 164 (39 N. W. 402, 12 Am. St. Rep. 626), and Merryman v. Chicago R. I. & P. R. Co. 85 Iowa, 634 (52 N. W. 545), both of which arose from accidents about turntables, and in all these cases the injured parties were trespassers. In the Twist Case the court say: “The law very humanely does not require the same degree of care on the part of a child as of a person of mature years, but he is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age and capacity, and the want of that degree of care is negligence.” Yet, in spite of the fact that the child injured was less than ten and a half years of age, the court held it to have been guilty of contributory negligence as a matter of law. In the case at bar neither the lower court nor this court was asked to say as a matter of law whether the minor was guilty of contributory negligence. There was no motion for a nonsuit or an instructed verdict, nor was all the evidence brought here in the bill of exceptions so that we could determine that question if it had been urged.
We cannot say, of course, whether, had the question been before us, the result would or would not have" been different, in view of the authorities cited both here and in the main opinion. The single question presented, however, was whether the court erred in instructing that the *241jury should take into consideration the age of the minor, and determine whether he used the care and prudence which an ordinarily prudent boy of his age would be expected to exercise. It was urged that the instruction should not have been given because the boy was fully acquainted with the business in which he was engaged, and knew the danger of crossing the tracks of the defendant’s railway as well as if he were an adult, took like precautions in crossing in the present instance as an adult would have taken or was required to take, and offered proofs of the exercise of that kind of care. It should be noted that, with the exception of the last one, the reasons advanced as a basis for the objection are deductions drawn from the evidence, which in some manner, at least, is susceptible of a different construction. The question, therefore, resolved itself into this, as stated in the main opinion, whether this boy, of the age of fifteen years, had arrived at man’s estate in judgment, prudence, and foresight; for, if he had not, the instruction, although given unasked, was not inappropriate. The entire case turned upon whether he was guilty of contributory negligence in driving off the tracks after he had started to cross them, the defendant’s theory being that he stopped, or practically so, by turning his horse’s head and the fore wheels of the wagon parallel with the track. But as to this there was a dispute in the evidence, so far as disclosed by the record, and the question presented is not whether he was guilty of contributory negligence notwithstanding he was a minor, but whether he was an adult to all intents and purposes notwithstanding he was but fifteen years of age, so that it was error to instruct at all that the jury should take his age into’ consideration. If the case was to go to the jury at all, it was not improper for it to go as it did.
5. The New York cases cited, namely, Reynolds v. New *242York Cent. & H. R. R. Co. 58 N. Y. 248, and Tucker v. New York Cent. & H. R. R. Co. 124 N. Y. 808 (26 N. E. 916, 21 Am. St. Rep. 670), seem to proceed upon a different doctrine as to the burden of proof in negligence cases from that adopted here. The plaintiff there is required to show affirmatively as a part of his case, before he can recover, that he is not guilty of contributory negligence. Mr. Justice Parker states it clearly in the Tucker Case, saying : “The plaintiff, in order to recover for the damages sustained by the killing of his intestate, * * 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.” Not so here. Contributory negligence is a matter of defense, and the burden of maintaining it is cast upon the defendant: Johnston v. Oregon S. L. Ry. Co. 23 Or. 94 (31 Pac. 283); Tucker v. Northern Term. Co. 41 Or. 82 (68 Pac. 426, 27 Am. & Eng R. R. Cas. N. S. 66, 11 Am. Neg. Rep. 629).
6. The Tucker Case from New York cites the Nagle Case (Nagle v. Allegheny Valley R. Co. 88 Pa. 35, 32 Am. Rep. 413), and the sui juris doctrine is applied. To be understood, this requires development. Mr. Justice Paxson in the Nagle Case says: “ The law fixes no arbitrary period when the immunity of childhood ceases and the responsibilities of life begin”; and, referring to Sharswood’s Blackstone (volume 1, p. 435; vol. 4, p. 20), continues: “We learn that fourteen is the age of discretion in males, and twelve in females; that at fourteen an infant may choose a guardian and contract a lawful marriage. His responsibility to the criminal law is equally well settled. Under seven years of age an infant cannot be found guilty of felony, for then a felonious discretio2i is almost an impossibility in nature ; but at eight years old he may be guilty of felony. Dalt. Just. c. 147. Between the ages of seven and fourteen, though an infant shall be prima facie ad*243judged to be doli incapax, yet if it appear to the court and jury that he was doli capax, and could discern between good and evil, he may he convicted and suffer death. After fourteen an infant is responsible for his crimes to the same extent as an adult.” From this statement of the law the eminent jurist makes the deduction that at the age of fourteen an infant is presumed to possess sufficient capacity and understanding to be sensible of danger, and to have the discretion and foresight to avoid it, and “this presumption,” he says, “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.”
Mr. Justice Parker thus reasons in the Tucker Case: “ 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 age 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.” If we mistake not the reasoning of *244that case, it means this, that a child of twelve without evidence to show his incapacity to comprehend danger and to avoid it, will be deemed to be sui juris—that is, that he has such capacity—and, being sui juris, he is as capable and as well qualified to understand and appreciate the danger, and to observe and employ the same degree of caution in crossing a railroad track, as an adult. Thus, it casts the burden of proof upon the child to show that he does not possess the same degree of appreciation of danger and the same prudence and foresight, as it respects the crossing of a railroad track, as an adult, and logically carries with it the presumption that in such a case a child of twelve is to all intents and purposes, a person of mature judgment, appreciation, and understanding.
The rule seems to be the legitimate result and eventual outgrowth of the rule obtaining in New York, that plaintiff has the burden of showing that he was not guilty of contributory negligence before he can recover. This is apparent from the case of Stone v. Drydock, E. B. & B. Ry. Co. 115 N. Y. 104, 110 (21 N. E. 712), where the court say: “We are inclined to the opinion that in an action for an injury to 'a child of tender years, based on negligence, who may or may not have been sui juris when the injury happened, and the fact is material as bearing upon the question of contributory negligence, the burden is upon the plaintiff to give some evidence that the party injured was not capable, as matter of fact, of exercising judgment and discretion. This rule would seem to be consistent with the principle now well settled in this State, that in an action for a personal injury, based on negligence, freedom from contributory negligence on the part of the party injured is an element of the cause of action.”
Now, it may be true that a lad of twelve or fourteen has sufficient capacity and understanding to be sensible of danger, and to have the discretion and foresight to avoid *245it, and yet, as compared with an adult of mature judgment, he may not be governed by the same degree of prudence and foresight as the adult, and therefore he could only be expected to exercise, that degree of care and circumspection that a lad of his years is wont to exercise. There is a time when a child is wholly incapacitated to exercise judgment. Then comes a time when he is to be deemed sui juris, as the New York and Pennsylvania courts term it, and is responsible for crime, and may be capacitated to contribute to his own injury, or, in other words, may he deemed guilty of contributory negligence, and yet not have the mature discretion and judgment of an adult. Later comes a time when he is held to all the duties and responsibilities of an adult or person of mature years. While yet he has not arrived at the period when his judgment is mature, and negligence is imputed to him, he ought not to be held to' the full accountability of an adult, but only to the accountability of a person of his years of prudence and discretion ; and in determining whether he is guilty of negligence as a matter of law this feature must be taken into account: that for a person of his years and discretion he has been guilty of such a departure from that degree of judgment that one of his years is wont to exercise as to make him absolutely responsible for the injury which he has brought upon himself.
7. Under our practice, where the defendant must show as a defense that the plaintiff has been guilty of contributory negligence,it must, contrary to the New York rule,be assumed until otherwise shown that the minor has exercised the care and circumspection to be expected of one of his years of discretion, and we cannot say as a matter of law that because he is sui juris he should have exercised the same degree of prudence and judgment as an adult. For these reasons we are impressed that the sui juris doctrine, as applied in New York and Pennsylvania, is inap*246plicable here, and it fortifies our former holding that the instruction complained of was not inappropriate under the evidence as disclosed by the record.
Rehearing Denied.