This action is brought to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant in operating, a car on its uptown track on Columbus avenue between Ninety-third and Ninety-fourth streets, between the hours of five and six o’clock p. m., on the 17th day of April, 1899,, in consequence of which it is alleged that while plaintiff was lawfully *90crossing the avenue in the exercise óf due care he was struck by the car, thrown to the ground and Ms ankle Was so crushed as to require amputation.
The learned trial judge, reserved his decision on a motion for a nonsuit at the close of the plaintiff’s case, and, on a .motion for the dismissal of the.complaint at the close of all the evidence and pending his decision thereon, submitted the material questions of fact to the jury under section 1187 of the Code of Civil Procedure. The jury found that the injuries were caused by the negligence of the defendant, and that plaintiff was free from contributory negligence and assessed .the damages at the 'sum of $5,000. The court then further reserved its decision on said motion for a new trial made by defendant upon the minutes, of the. court, upon all the grounds specified in section 999 of the Code of Civil Procedure. Subsequently the motion for a dismissal of the complaint was granted, as was also the motion to set aside the verdict, but a new trial was not ordered. The appeal is from the order entered upon these decisions which recites that the complaint was so dismissed and that the motion to set aside the verdict was granted, and also from the judgment entered which dismisses the coniplaint pursuant to said-order without awarding a new trial.
The first question, therefore, presented by the appeal is whether the evidence required the submission of the case to the jury. If it did, the judgment dismissing the complaint is erroneous and must be reversed. If there was any evidence tending to show that plaintiff was free from contributory negligence and that defendant was guilty of negligence which caused the injuries, the plaintiff thereby established a prima facie case for submission to the jury, and -while the court' might- in a proper case, set aside the verdict as against the weight of evidence and .grant a new trial, the complaint could not be dismissed and the action be thereby terminated without the verdict of a jury, it being now well settled that such controverted questions of fact must be ultimately determined by the jury and that the court may not usurp the functions of a jury and finally pass upon questions of fact. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66 ; Costello v. Third Ave. R. R. Co., 162 id, 608; Williams v. Delaware, Lack. & West. R. R. Co., 155 id. 158.)
Plaintiff resided at 101 West Ninety-third street, that being the *91northwesterly corner of Ninety-third street and Columbus avenue. At the time of the accident the plaintiff was seven years and . nine months old. About five o’clock in the afternoon he was sent out on errands by his mother. He first went to Boch’s grocery store, which was on the easterly side of Columbus avenue, the third door south of Ninety-fourth street, about two-thirds of the block north of Ninety-third street. According to his evidence, after making some purchases at the grocery he entered a florist’s store which was next door to the south and made inquiries about some palm plants and then passed directly out to the curb. He testifies that he stood on the curb a few minutes watching some men working at a manhole on the same side of the street and a little to the south; that he then started directly across the street to a news stand to get a paper ; that when he came near the first or north-bound track he stopped to allow a car to pass northerly thereon; that he then looked to the north and south and saw a north-bound car at Ninety-third street-And a south-bound car at Ninety-fourth street but none nearer, and, thinking he could get across, he proceeded to cross the north-bound track; that after stepping upon this track, he paused for the car .approaching on the south-bound track to pass, and it being closely followed by another, he remained on the north-bound track awaiting the passage of the second south-bound car, and while it was passing .he looked southerly and observed a car about three houses or fifty or seventy-five feet distant approaching rapidly on the track on which he was standing; that he then turned around to step off the track toward the east, and just as he got turned and near the edge of the rail, the car struck him inflicting the injuries complained of.
This testimony of the plaintiff is corroborated by that of several other witnesses. Other evidence was offered by the plaintiff tending to show that the car was running at the full Speed of the cable and that its speed was not slackened nor was any signal or warning given until after it struck the boy. In these circumstances the question of plaintiff’s freedom from negligence and of defendant’s negligence should have been submitted to the jury. (McDonald v. Metropolitan St. Ry. Co., supra; Costello v. Third Ave. R. R. Co., supra; Legare v. Union Railway Co., 61 App. Div. 202; Dunican v. Union Railway Co., 39 id. 497, 501.)
The complaint having been dismissed, on the motion for a non-*92suit and for its dismissal at the close of the evidence, the decision on which was reserved pending the submission of the special issues to the jury, pursuant to the provisions of section 1187 of the Code of Civil Procedure, the appeal must be determined in accordance with the practice prescribed by that section, which does not contemplate a motion for a new trial or a consideration of the weight of evidence by the trial judge. The motion to set aside the verdict and for a new trial, therefore, which the order shows was entertained on the minutes of the .court and granted to the extent of setting aside the verdict but without awarding a new trial, must be disregarded and treated as a nullity, for the court is not, on a motion for a new trial, authorized to dismiss the. complaint.
In accordance with the practice under section 1187 of the Code established by the opinion of this court in Sullivan v. Metropolitan Street R. Co. (37 App. Div. 491), the case contains the exceptions taken by the respondent as well as those taken by the-appellant, and it becomes our duty to determine whether the verdict should be reinstated, or a -new trial should be awarded.
If no error was committed upon the trial or in the submission of "the case to the prejudice of the defendant, and if the verdict is not. against the weight of evidence or excessive, judgment should be directed thereon in favor of the plaintiff, inasmuch as we have reached the conclusion that the case should have been submitted to the jury.
The defendant called Dr. Moorhead as a witness. He testified that he happened to be passing at the time of the accident, and that he rendered first aid to the plaintiff in stopping the flow of blood prior to the arrival of the ambulance; that he hada dispensary appointment to the hospital to which plaintiff was taken, but that he did not attend plaintiff as a physician or have anything to do with his treatment other than as stated ; that he was a surgeon in the employ of defendant and ten days after the accident he called at the hospital, to see the plaintiff, whom he had not seen in the meantime, in the interest of defendant; that he asked plaintiff if he remembered seeing him at the drug store, to which the plaintiff replied in the negative; that he did not think plaintiff knew he was a physician, and he did not tell plaintiff he attended him at the drug store until after plaintiff made the statement to him concern*93ing the accident, which was excluded by the court; that he did not talk with plaintiff about his present condition or about treating him as a physician, but solely as to the manner in which the accident occurred.
Under plaintiff’s objection the court excluded the evidence as to what the boy said to the doctor on that subject, and to this ruling defendant’s counsel duly excepted.
I think this evidence was competent. It appeared presumptively that the boy did not remember the witness or know- that he was a physician, and it is clearly shown that the doctor was not treating plaintiff, and that the information was not obtained for the purpose of aiding in his treatment. The statement was, therefore, voluntarily made the same as if made to an attendant, nurse or other •employee of the hospital, or to a visitor, and it did not come within the provisions of section 834 of the Code of Civil Procedure, which prohibits a physician from disclosing information acquired in attending a patient professionally, and which was necessary to enable him to act in that capacity.
This error precludes the reinstatement of the verdict and requires that a new trial be granted, with costs to the appellant to abide the event.
Van Brunt, P. J., concurred.
Nonsuit set aside and judgment directed upon the verdict, with costs.