
    Harry Gross, an Infant, by Isidor Gross, His Guardian ad Litem, Appellant, v. Clair Foster, Respondent.
    Second Department,
    October 12, 1909.
    Appeal from nonsuit — motor vehicles — negligence — injury to child at street crossing — contributory negligence of infants.
    Where a complaint is dismissed at the close of the plaintiffs case, he is entitled on appeal to the most favorable inference that can be drawn from the evidence. Where there is evidence that the defendant’s automobile, which struck the plaintiff, approached the street crossing without giving warning and was going fast at the time, the jury may find the defendant negligent.
    Where the plaintiff, a child nine years of age, was not permitted to testify because at the time of trial he had not sufficient intelligence to comprehend the nature of an oath, he cannot he held to the same degree of care that would be exacted of a mature person, and it is for the jury to say whether he exercised a degree of care commensurate with his years and intelligence.
    A dismissal at the close of the plaintiff’s case should not he made upon the merits.
    Appeal by the plaintiff, Harry Gross, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 19th day of October, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term.
    
      Frederick E. Fishel, for the appellant.
    
      Henry Escher, Jr., for the respondent.
   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.  