App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. only then, will you proceed to the consideration of the question of damages." The court thus left it to the jury to decide as to whether the plaintiff was sui juris or non sui juris and it was not claimed by the defendant that the plaintiff could or should, as matter of law, be declared sui juris or non sui juris. We think the learned trial justice was, therefore, right in saying that he had fully charged the jury on the point presented by this request, so far as the defendant was entitled thereto, and that an instruction in the form requested might have confused or misled the jury. It is to be borne in mind that the question as to whether the plaintiff was sui juris or non sui juris had not been determined and it will be observed that this request was general, and not conditional upon the jury finding the plaintiff non sui juris. If charged it would have been in effect an instruction to the jury that even though they should find that the plaintiff was sui juris, yet if her parents were guilty of any negligence there could be no recovery. It may be said in answer to this argument that if the plaintiff was sui juris her parents could not be chargeable with negligence in allowing her to go upon the street and, technically, this is doubtless so, but the jury had not been so instructed and would not understand that and it is manifest that this was not the purpose of the request, since the court had already instructed the jury that if the plaintiff was not sui juris and her parents were guilty of negligence, that such negligence was imputable to her. The court followed the Court of Appeals in charging that if the plaintiff was non sui juris she could not be charged with personal negligence and, in that event, the question of contributory negligence depended upon whether or not her parents were negligent. (Neun v. Rochester Railway Co., 165 N. Y. 146.) No exception was taken to the charge that if the child was non sui juris but exercised that degree of care and precaution required of a person sui juris, then even if there was negligence on the part of the parents that would not bar a recovery. The court in this part of the charge was stating the general rule of law that even though a child be non sui juris and its parents be negligent, yet if the child in fact does exercise a degree of care and caution such as would have permitted a recovery by an adult, the negligence of the parents would not be a proximate cause of the FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. accident which would then be due alone to the negligence of the defendant, if the defendant were negligent. (Huerzeler v. C. C. T. R. R. Co., 139 N. Y. 490, 493, 494.) It may be that the care and caution exercised by the plaintiff would not have established freedom from contributory negligence on the part of an adult and that this general proposition of law was erroneous as applied to the case at bar, but, as has been observed, it was neither excepted to nor was the attention of the court drawn to this point, and if it had been the statement might have been withdrawn or the jury might have been instructed favorably to the defendant. The contention of counsel for defendant upon the trial was that if the plaintiff was sui juris she was bound to exercise the care of an adult, and he excepted to the charge that she was only bound to exercise such care as would be proper to her age and condition and that the jury were to determine whether she could by the exercise of such care as would be reasonably expected from one of her years have avoided the accident; and this is also the contention of counsel for the defendant on the appeal, and he cites as authority to sustain his position the cases of McDonald v. Metropolitan St. R. Co. (80 App. Div. 234) and Charlton v. Forty-second Street, etc., Ry. Co. (79 id. 547), decided by this court. In these cases the rule was so stated, but the infants were twelve or more years of age, and, as appears by the opinions, considerable importance was attached to that fact. This court has, however, in the case of Murphy v. Perlstein (73 App. Div. 256) declared the law to be that an infant sui juris is chargeable with contributory negligence, but that in determining whether he is guilty of contributory negligence his acts are to be considered with reference to his age and the degree of care that may reasonably be expected to be exercised by one of his years; and while there is considerable confusion, if not conflict, in the decisions upon this question both in the Appellate Division and Court of Appeals, I think that this is the sound rule and that it is sustained by the weight of authority. (Costello v. Third Ave. R. R. Co., 161 N. Y. 317, 323; Zwack v. N. Y., L. E. & W. R. R. Co., 160 id. 362; Swift v. Staten Island Rapid Transit R. R. Co., 123 id. 645; Stone v. Dry Dock, etc., R. R. Co., 115 id. 104, 111; McGovern v. N. Y. C. & II. R. R. R. Co., 67 id. 417; Thurber v. Harlem B., M. & F. R. R. Co., 60 id. 326; O'Mara v. Hudson River R. R. Co., 38 id. 449.) This confusion has doubt App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. less arisen from applying to civil actions the rules of law applicable to criminal prosecutions. By the Penal Code an infant under the age of seven years is not capable of committing crime, and infants of seven and under twelve are presumed to be incapable, but this presumption may be overcome by proof of sufficient capacity to understand the act and know its wrongfulness (Penal Code, §§ 18, 19), but otherwise one is ordinarily presumed to be responsible for his acts, and the burden of proving that he is irresponsible is upon him. (Penal Code, § 17.) There is a material difference between the degree of intelligence required to know the nature and quality of an affirmative act and to know that it is wrong and the degree of intelligence which precludes, on account of contributory negligence, a recovery of damages in a civil case for injuries inflicted through the negligence of another. The question, when it arises in a negligence case, of whether an infant was sui juris or non sui juris is only important in determining whether the infant is to be held responsible for his own contributory negligence, in which case freedom from personal negligence on his part only must be shown, or only for the negligence of his parent or guardian in which case freedom from negligence on their part only must be shown, and it depends upon whether he is of such age and intelligence that an ordinarily prudent parent or guardian would permit him to go about upon the public streets alone. If he is not, then the question of contributory negligence hinges upon the conduct of the parent or guardian, and if the parent or guardian has exercised that reasonable degree of care and diligence in keeping the infant from places where harm may befall him that would be exercised by parents or guardians of ordinary prudence under like circumstances, then those who negligently injure the infant must respond in damages; and if the parent or guardian has failed to exercise this degree of care, it is imputable to the infant and precludes a recovery unless the infant exercised that degree of care and caution that would have been exercised by an ordinarily prudent adult under like circumstances. If, however, the infant possessed sufficient age and intelligence to render it prudent for the parent or guardian to permit him to go about on the public streets unaccompanied, then he is said to be sui juris and it is only his own contributory negligence which will defeat a recovery for FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. injuries negligently inflicted by another. At the outset upon proof of the age alone there may be a presumption that the child is non sui juris or sui juris based upon the common law, applying by analogy the penal statutes of the State; and such presumption may be rebutted by proof of want of ordinary capacity. It may sometimes be disposed of as a question of law, but is often a question for the jury. What the presumption on that point was in this case and how it was affected by other evidence and whether the question of sui juris or non sui juris should have been decided by the court, are questions not presented by this appeal. The question as to whether this infant of six years, if deemed sui juris by the jury, was to be held accountable for her conduct as if she were an adult is before us. I think she was free from contributory negligence, assuming her to be sui juris, if she exercised that degree of care and caution which would have been exercised by an ordinarily prudent child of her own age and intelligence under like circumstances, or in other words as might be reasonably expected of her in view of her age and intelligence. We may take judicial notice that children in going along upon a street, even though they are of sufficient age and possess sufficient intelligence to render it prudent for the parent or guardian to permit them to go about alone, engage in sport and play and are otherwise attracted and diverted from exercising that degree of care and caution for their own safety that is exercised by ordinarily prudent adults. While children who are sui juris are chargeable with contributory negligence and must exercise care for their own safety, it will not do to hold them responsible for the same degree of care as is exercised by ordinarily prudent adults or to cast upon them the burden of showing that they are incapable of exercising such a degree of care. Of course, as with adults, the court may be justified in deciding that they have been negligent as matter of law; but neither court nor jury should judge them as if they were adults. It is contended on the part of the appellant that the verdict, which was for $12,000, is excessive. The injuries necessitated the amputation of plaintiff's left arm an inch below the elbow. The arm is practically useless. The scar has a tendency to make the nerves sensitive at that point and there is a tender spot on the stump and the plaintiff experiences a feeling as if pins and needles were going FIRST DEPARTMENT, JULY TERM, 1903. App. Div.] through the left hand which has been removed. The development of the left shoulder and side are markedly less than that of the right, leaving the left shoulder much lower, and this condition was exhibited to the jury. There was also evidence that the plaintiff's nerves have been seriously affected by the accident and that she has been ill from nervous troubles nearly all the time since down to the time of the trial in January last; that she is not able to comb her hair or cut her food or dress herself, and that for two or three years preceding the trial she had rested well, but before that her sleep was disturbed and she complained of pains through her whole side and arms and sometimes would wake up with pains; that she has suffered pain in her side and limbs from the time of the accident until the testified in the case, but not all the time. In these circumstances, while the verdict seems large, we cannot say that it is excessive and we would scarcely be justified in reducing it. At the request of counsel for the defendant the court instructed the jury that there was no evidence in the case that would justify them in finding that the plaintiff suffered any other injury as the result of the accident than the loss of a part of her left arm. Counsel for the plaintiff subsequently requested the court to instruct the jury that there was evidence in the case "as to the atrophied condition of the muscles and lack of development," to which the court replied, "I recall that fact now, gentlemen, and if that is your recollection of the testimony you may consider that in estimating the damages." Thereupon counsel for defendant said, "I except to that—that is, in allowing the jury to consider that at all as an element of damage." The court then inquired of counsel for defendant, "Do you ask me to instruct them not to consider it?" to which the only reply "I except to your Honor allowing them to consider that as an element of damages if they ever get to the question of damages." These exceptions are urged as constituting reversible error. Counsel for the defendant should have requested the court to instruct the jury not to consider this evidence, since the court manifested a desire to do so if that was desired. It may be, strictly speaking, there was no express evidence of an atrophied condition of the muscles, but there was express evidence that plaintiff had "hardly any " muscles on the left side, and, as already stated, there was a marked lack of development of that side. Whether this condition of the muscles was, |