John Costello, an Infant, by John Costello, His Guardian Ad Litem, Appellant v. Third Avenue Railroad Company…

Summary

The New York Court of Appeals reversed the nonsuit entered against the infant plaintiff, holding that the issue of the child's contributory negligence was a question of fact for the jury and not a matter of law. The court emphasized that a child of eight years is not to be judged by the adult standard of care and that the gross negligence of the motorman was undisputed. The judgment was reversed and a new trial was ordered. Justice (unnamed) concurred, arguing that the trial court improperly assumed the child was sui juris and that the burden to prove such should rest on the defendant.