This action was by a boy nine years old. While crossing Broadway, Brooklyn, on April 6, 1918, he was struck by defendant s’ automobile, which dragged him a considerable distance. • When picked up he was breathing and unconscious. He was mot put on the stand at the trial. After the charge defendants/ counsel made the following requests: Defendants’ Counsel: “ I ask your Honor to charge the jury that in considering thcil evidence in this case they may not only consider the witnesse*s who have appeared here, but the witnesses who have not ap peared here, and they may take into consideration the fact tha t the boy to whom this accident is alleged to have happened w'as not called to testify in his own behalf.” The Court: “They have a right to consider that. I so charge.” Defendants’ Counsel: “ I ask your Honor to charge the jury, as a matter *of law, that when a party to an action is able to produce a witness material to the case, and he does not produce him, the failure to produce that witness may be taken by the jury as indicating that the testimony of such a witness would not be favorable to that party.” The Court: “ I so charge, where it appears- that the plaintiff was able to produce the witness.” Plaintiff’s Counsel: “ In connection with that, I ask your Honor to\eharge that it does not appear that there was any witness that the plaintiff was able to produce that he did not produce.” The1-Court: “ I cannot charge that.” Defendants’ Counsel: “ The failure of the plaintiff’s counsel to produce the boy as a witness rúay be taken by the jury to indicate that ' the testimony of the boy would be unfavorable to his own case.” The Court: “ ,1 refuse to so charge. Ti^e jury may consider the boy’s age and the circumstances surrounding the accident.” Defendant!/ Counsel: “ Exception.”
The court had stated] the effect of not calling a witness as favorable to defendants as they were entitled. (Reehil v. Fraas, 129 App. Div. 563; Neale v. Nassau Electric Railroad Co., 161 id. 95; Perlman v. Shanck, 192 id. 179, 182, 184.)
When, however, counsel asked an instruction regarding.the omission to call this infant to the witness stand and to apply the general rule for an adult plaintiff, the court declined, but left the jury to consider the boy’s age and the circumstances of his accident, with the probability of his inability to describe *668so sudden a blow, which made him unconscious. Tn this I think there was no error. This last charge is criticised jin that the jury were not told how they should consider the boy’s not being called. But the prior instructions had < made this clear. As this court said in a like case: “ We c; - -- be too fine in such matters without doing injustice. The . inement of justice is often injustice.” (Wade v. City of Muhins Vernon, 133 App. Div. 389, 391.) .
I advise that the judgment and order be afiirmed, with costs.
Rich and Kelly, JJ., concur; Jenks, P. J.., concurs in separate opinion; Mills, J., is of opinion that thy defendants’ exception to the refusal to charge is reversible ervor.