Opinion
March 24, 1948.
Appeal by the administratrix of the estate of Cosmos Caloro from a verdict of no cause of action in a death case, and from an order denying a new trial. Appeal by the defendant from a verdict of $10,000 in favor of the infant plaintiff Donald Caloro, and from an order denying a new trial. Both cases were tried before a jury at a term of the Supreme Court for Rensselaer County. The accident, out of which the cases arose, happened on a State highway, known as Route 9, between the city of Albany and the hamlet of East Greenbush. The jury apparently found that the decedent and the infant plaintiff, who were father and son, were walking in the direction of traffic. This was in violation of the statutory rule that pedestrians should walk facing traffic (Vehicle and Traffic Law, § 85, subd. 6). The trial court submitted to the jury the question of whether the decedent's violation of the statutory rule amounted to contributory negligence as a matter of fact. This was proper ( Tedla v. Ellman, 280 N.Y. 124). As to the infant plaintiff the trial court charged that he was obliged to exercise only that degree of care that a boy of his age would ordinarily exercise under the circumstances. This was also proper ( Locklin v. Fisher, 264 App. Div. 452). There was evidence from which the jury could find that the defendant was negligent. Judgments and orders affirmed, in the death case with no costs, and in the infant's case, with costs to respondent. Hill, P.J., Foster and Russell, JJ., concur; Brewster, J., concurs in the infant's case, and dissents in the action brought by the administratrix upon the ground that the finding, implicit in the no cause verdict, that deceased was guilty of contributory negligence, is against the weight of evidence; Deyo, J., concurs for affirmance in the death action but dissents in the infant's action on the ground that the Trial Judge charged that the statute (Vehicle and Traffic Law, § 85, subd. 6) requiring pedestrians to walk on the left side of the highway facing traffic did not apply because of the child's age, or in other words, that he was non sui juris so far as the statute was concerned. An infant is non sui juris only up to the age of three or four years ( Verni v. Johnson, 295 N.Y. 436). After that he becomes sui juris and whether or not his conduct constitutes negligence becomes a question of fact to be determined by the jury in the light of what would be considered reasonable or prudent in the case of a child of the same age, capacity and experience under similar circumstances ( Gloshinsky v. Bergen Milk Transportation Co., 279 N.Y. 54; Camardo v. New York State Railways, 247 N.Y. 111). In the instant case the boy was eight years old, and his violation of the statute, although not constituting contributory negligence as a matter of law ( Tedla v. Ellman, 280 N.Y. 124), was evidence of negligence which the jury had a right to consider, bearing in mind his age, intelligence and experience ( Locklin v. Fisher, 264 App. Div. 452). The judgment should be reversed and a new trial ordered.