ANDREWS, J.

The nonsuit was placed on the ground that an infant seven years of age was sui juris, and that the act of the child in crossing the street in front of the approaching car was negligence on her part, which contributed to her death, and barred a recovery. We think the case should have been submitted to the jury.

The negligence of the driver of the car is conceded. His conduct in driving rapidly along Canal street at its intersection with Orchard street, without looking ahead, but with his eyes turned to the inside of the car, was grossly negligent. ( Mangam v. Brooklyn R.R. Co., 38 N.Y. 455; Railroad Co. v. Gladmon, 15 Wall. 401). It cannot be asserted as a proposition of law that a child just passed seven years of age is sui juris, so as to be chargeable with negligence. The law does not define when a child becomes sui juris. ( Kunz v. City of Troy, 104 N.Y. 344). Infants under seven years of age are deemed incapable of committing crime, and by the common law such incapacity presumptively continues until the age of fourteen. An infant between those ages was regarded as within the age of possible discretion, but on a criminal charge against an infant between those years the burden was upon the prosecutor to show that the defendant had intelligence and maturity of judgment sufficient to render him capable of harboring a criminal intent. (1 Arch. 11.) The Penal Code preserves the rule of the common law except that it fixes the age of twelve instead of fourteen as the time when the presumption of incapacity ceases. (Penal Code, §§ 18, 19.)

In administering civil remedies the law does not fix any arbitrary period when an infant is deemed capable of exercising judgment and discretion. It has been said in one case that an infant three or four years of age could not be regarded as sui juris, and the same was said in another case of an infant five years of age. ( Mangam v. Brooklyn R.R., supra; Fallon v. Central Park, N. E.R.R.R. Co., 64 N.Y. 13.) On the other hand, it was said in Cosgrove v. Ogden ( 49 N.Y. 255), that a lad six years of age could not be assumed to be incapable of protecting himself from danger in streets or roads, and in another case that a boy of eleven years of age was competent to be trusted in the streets of a city. ( McMahon v. Mayor, etc., 33 N.Y. 642.) From the nature of the case it is impossible to prescribe a fixed period when a child becomes sui juris. Some children reach the point earlier than others. It depends upon many things, such as natural capacity, physical conditions, training, habits of life and surroundings. These and other circumstances may enter into the question. It becomes, therefore, a question of fact for the jury where the inquiry is material unless the child is of so very tender years that the court can safely decide the fact. The trial court misapprehended the case of Wendell v. New York Central Railroad Company ( 91 N.Y. 420), in supposing that it decided, as a proposition of law, that a child of seven years was capable of exercising judgment so as to be chargeable with contributory negligence. It was assumed in that case, both on the trial and on appeal, that the child whose conduct was in question was capable of understanding, and did understand the peril of the situation, and the evidence placed it beyond doubt that he recklessly encountered the danger which resulted in his death. The boy was familiar with the crossing, and, eluding the flagman who tried to bar his way, attempted to run across the track in front of an approaching train in plain sight, and unfortunately slipped and fell, and was run over and killed. It appeared that he was a bright, active boy, accustomed to go to school and on errands alone, and sometimes was intrusted with the duty of driving a horse and wagon, and that on previous occasions he had been stopped by the flagman while attempting to cross the track in front of an approaching train, and had been warned of the danger. The court held, upon this state of facts, that the boy was guilty of culpable negligence. But the case does not decide, as matter of law, that all children of the age of seven years are sui juris.

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. In the present case the only fact before the jury bearing upon the capacity of the child whose death was in question was that she was a girl seven years and three months old. This, we think, did not alone justify an inference that the child was incapable of exercising any degree of care. But, assuming that the child was chargeable with the exercise of some degree of care, we think it should have been left to the jury to determine whether she acted with that degree of prudence which might reasonably be expected, under the circumstances, of a child of her years. This measure of care is all that the law exacts in such a case. ( Thurber v. Harlem, B.M. F.R.R. Co., 60 N.Y. 335.) The child was lawfully in the street. In attempting to cross she was struck by the horse on the defendant's car and was run over and killed The evidence would have justified the jury in finding that when the child stepped down from the curb-stone the car was fifty or more feet away, and the distance from the curb-stone to the track of the defendant's road was less than twelve feet. The child, if she saw the car, might very well have supposed that she could get over the track before the car passed. There is evidence that the speed of the car was increased at about the time the child started to cross. It was, we think, for the jury to say whether the child's conduct was unusual or unnatural for a child of her years. She probably did not appreciate the rapidity of movement of the car, nor could it be expected that she would weigh the circumstances or fully understand the danger of attempting to cross in front of the car. The negligence of the defendant's driver is conceded, and it was for the jury to judge whether the conduct of the child in crossing the street to join another child engaged in roller skating on the opposite side was characterized by any want of that degree of care which children, under similar circumstances, would usually exercise. There is no question in the case of negligence on the part of the parent of the child. That point was not presented on the motion for nonsuit.

The judgment should be reversed and a new trial granted.

All concur.

Judgment reversed.