Opinion
December 12, 1949.
In an action by the infant plaintiff to recover damages for personal injuries suffered when cans resting on a shelf in defendant's self-service market fell upon her as she was removing one of the cans, and by her father for loss of services and for medical expenses, judgment dismissing the complaint at the close of plaintiffs' case reversed on the law and a new trial granted, with costs to appellants to abide the event. The infant was seven and one-half years old at the time of the accident, and nine years old at the time of the trial. The court refused to permit her to be sworn but permitted her to make a statement. Her voir dire did not show she did not have sufficient mental capacity and she should have been sworn. ( Gehl v. Bachmann-Bechtel Brewing Co., 156 App. Div. 51.) Her unsworn statement shows she asked defendant's store manager for a can of pork and beans and he replied: "Go over there and get them." The shelf containing the cans was five to five and one-half feet high, and she was about three feet and eight or nine inches tall. If her unsworn statement were testimony, plaintiffs, in our opinion, would have made out a prima facie case. Nolan, P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.