Opinion by
This аction in trespass was brought by a.minor and her parents to recover compensation for injuries sustаined by her when she was struck by an automobile owned and operated by the defendant. Plaintiffs’ evidence was that the child, then eight years of age, was walking across a street between crossings, in plain view, аnd that when she was about three-fourths of the way across the twenty-six-foot cartway she was struck by defendant, who had approached the place of the accident at a speed of 40 to 45 milеs an hour without sounding a warning. She suffered a fracture of the right femur, *355 which resulted in a serious and permanent injury, in that her right leg is crooked and deformed and considerably shorter than the left. Defendant’s account of the accident was that the minor plaintiff suddenly darted across the street from behind a parked autоmobile. The jury found for plaintiffs, and from the judgments in their favor defendant appealed.
When the casе was originally called for trial, counsel for plaintiffs, in his opening statement, said: “This is an important case. The whole future life of the child is affected.” On defendant’s motion, a juror was withdrawn, upon the ground that the opening should be confined to a bare recital of the facts. While the action taken was within the discretion of the trial judge, we are at a loss to understand why such statement was not entirely proper or how it could possibly have prejudiced defendant. Thereupon counsel for defendant obtained permission to try the case immediately in another court room of the same court, before аnother judge. The second jury was selected from the same panel from which the first jury had been chosen. Defendant’s counsel objected and requested that the case be continued, stating that he felt thаt the incident would be in the minds of the second jury. The learned trial judge refused to continue the case, but bеcause of the objection of defendant’s counsel struck from the number called from which the jui’y was selected the three members who defendant’s counsel said had been present when the remarks objеcted to were made. Under the circumstances there could be no error in the refusal of a сontinuance. The matter was within the discretion of the trial judge (Wilhelm v. Uttenweiler,
Defendant contends that judgmеnt n. o. v. should have been entered in his favor “because commonly known laws of physics demonstrate thе impossibility of plaintiffs’ evidence” as to the speed of the car, his argument *356 being that an automobilе traveling 40 miles an hour would necessarily have caused greater injury to an eight-year-old girl than was shown by the evidence for plaintiffs, and would have continued, after hitting her, for more than the distance testified tо by plaintiffs’ witnesses, which was 12 to 15 feet. This argument, even if sound, means only that defendant’s ear was not going 40 miles an hour at the moment of impact, not that it did not approach the place of the accident at that speed or that it did not maintain that speed until it was too late for defendant tO' avoid hitting the minor plaintiff. It could mаke little difference, so far as the result was concerned, whether the speed of the car immediately before the collision was 40 miles an hour, as testified by plaintiffs’ witnesses, or 20 miles an hour, as asserted by defendant. Plaintiffs’ witnesses nowhere .stated that the speed of 40 miles an hour was maintained until the actuаl moment of impact, nor was it necessary to plaintiffs’ case that this be true. Of course the car could be stopped in a shorter distance if going at a less speed, but it nowhere appears in this record how far defendant was from the point of contact when he applied his brakes.
One of рlaintiffs’ witnesses stated that the child crossed the street without looking in the direction from which defendant aрproached. However, the tender age of the minor plaintiff at the time of the accident precluded any finding of contributory negligence on her part (see Taylor v. D. & II. Canal Co.,
The other questions raised by defendant are without merit and require no discussion.
Judgments affirmed.