Agnesini v. Olsen

277 A.D.2d 1006

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1950
• Status: Published

Opinion

In a negligence action by an infant to recover damages for personal injuries, and by his father to recover for expenses and loss of services, judgment dismissing complaint as against both defendants in accordance with the granting of their motion at the close of plaintiffs’ case, reversed on the law as to defendant Randi Olsen, without costs, and a new trial granted as to that defendant. Insofar as defendant Harry Olsen is concerned, the judgment is unanimously affirmed, without costs. The proof is sufficient to entitle a jury to find that the female defendant knew that her four-year-old son had started fires on three occasions, despite which she afforded him an opportunity to play with matches. In consequence, he started a fire which caused injury to plaintiff in his efforts, in response to the invitation of defendants, to aid in extinguishing it. (Kuchlik v. Feuer, 239 App. Div. 338; Steinberg v. Cauchois, 249 App. Div. 518; Phillips v. Barnett, 2 N. Y. City Ct. Rep. 20; Thibodeau v. Che ff, 24 Ont. L. Rep. 214; see 12 A. L. R. 812; 155 A. L. R. 85, and cases cited.) There is no proof that the male defendant was aware of the propensities of his son to play with matches and start fires. Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.