#### William Mester v. William Wuest, by August Ehlers, his Next Friend.

1. Instructions—Must Not Misstate the Evidence.—An instruction upon the question of what judgment and care is to be expected from a boy, stated his age to be thirteen years, when the evidence (undisputed) showed it to be fourteen. Held, error. At this period of a boy’s life a year may be material in determining the question.

Memorandum.—Appeal from a judgment of the Circuit Court of Cool: County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1894.

Reversed and remanded.

Opinion filed December 20, 1894.

Loesoh Brothers & Howell, attorneys for appellant.

Kistler & Joslyn, attorneys for appellee.

*123Mr. Justice Gary

delivered the opinion oe the Court.

The appellee sued the appellant for damages sustained by being bitten by a dog of the appellant.

We shall make no comment upon the merits of the case. The jury found a verdict for the appellee for the sum of $2,000, upon which a judgment for $1,000 was entered, $1,000 being remitted. We are not so certain that this is right— just—that we may disregard a serious error. There was testimony tending to show that the dog was not alone to blame. The appellee was fourteen years old at the time of the biting. Among the instructions for him was this:

“ 4. The court further instructs the jury that a child is not supposed to use the same judgment and care in case of danger as would an adult, and in determining the negligence, the jury should consider the age and intelligence of the child, and whether he used such care and acted as a boy thirteen years of age might be supposed to act in such a case.”

This mistake of one .year as to the age may have had a decided effect upon the jury. They might not remember the testimony as to age, and adopt the- assumption by the court. At that period of a boy’s life every year counts. Revised Statute, Ch. 38, Sec. 237, Ch. 64, Sec. 3.

The judgment is reversed and the cause remanded.