Opinion
June, 1934.
Judgment dismissing complaint on the merits reversed on the law and a new trial granted, costs to appellant to abide the event. The learned trial court erred in holding that the plaintiff was, if sui juris, negligent as matter of law; that if non sui juris he had committed an act which, in the case of an adult, would have constituted negligence; and that the negligence of his mother, as shown by the proof, was imputable to him. If the infant was sui juris, it was for the jury to determine whether, in playing on the sidewalk and going out into the roadway to recover the peach basket, he exercised that degree of care which ordinarily characterizes the conduct of boys of his age, intelligence and experience. If non sui juris, it was for the jury to say whether on the part of his mother there was any negligence with which he was chargeable. Lazansky, P.J., Young, Kapper, Tompkins and Davis, JJ., concur.