Gross v. Foster , 118 N.Y.S. 889 ( 1909 )

Rich, J.:

The plaintiff, a child nine years of age, was run down and seriously injured by the defendant’s automobile, at the intersection of Seventh avenue and Thirtieth street, borough of Manhattan, Hew York city, and this action is brought to recover the damages.

At the close of the plaintiff’s case the complaint was dismissed on the ground‘of failure to show negligence on the part of the defendant, or freedom from contributory negligence on the part of the plaintiff. Judgment has been entered dismissing the complaint on the merits.

Applying the rule that the plaintiff is entitled to the most favorable inference that can be drawn from the evidence, the jury might have found that the automobile approached the crossing without giving any warning; that it was going fast when it hit the plaintiff, and that the defendant was negligent.

The plaintiff was not permitted to testify because, at the time of the trial, a year after the accident, he did not possess sufficient intelligence to comprehend the nature of an oath. Under these circumstances he could not be held to the same degree of care that should be exacted of a mature person, and it was for the jury to say whether he exercised the degree of care with which a person of his years and intelligence is chargeable. In any event it was error to dismiss the complaint upon the merits. (McDonald v. Metropolitan St. R. Co., 167 N. Y. 66.)

The judgment must be reversed and a new trial granted, costs to abide the event.

Hirsohbero, P. J., Gaynor and Miller, JJ., concurred; Burr, J., not sitting.

Judgment reversed and new trial granted, costs to abide the event.