Fox v. Mission of the Immaculate Virgin for the Protection of Homeless & Destitute Children

285 A.D. 898, 138 N.Y.S.2d 17, 1955 N.Y. App. Div. LEXIS 6047

Opinion

In an action to recover damages for personal injuries and for medical expenses and for loss of services, defendant appeals from a judgment for plaintiffs entered on the verdict of a jury. Judgment reversed on the law and the facts, with costs, and amended complaint dismissed, with costs. The implied finding by the jury that the infant plaintiff was free from contributory negligence is reversed. The implied finding of negligence on the part of defendant is affirmed. From his own testimony it is clear that this youngster was not non sui juris and realized the danger of going through the open window in the darkness while it was raining. He testified that the ledge was too “slanty” to stand on. He looked at it and returned to bed. The fact that thereafter he attempted to stand on the ledge when aided by another emphasizes that he knew he was placing himself in a dangerous situation. He knew he had no right to be out of bed. The ledge was not a place provided by the defendant, nor intended, for use by any of the children. So far as the record shows, no other person ever attempted to stand on the ledge. Willfully, he violated the rules of the defendant’s institution and knowing the danger went in the darkness to a place on which it was too “slanty” to stand. Nolan, P. J., Wenzel, MacCrate, Beldock and Murphy, JJ., concur.