Greenbaum v. Tiltz Air Conditioning Corp.

272 A.D.2d 769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1947
• Status: Published

Opinion

In an action by an infant plaintiff to recover damages for personal injuries alleged to have been caused by defendant’s negligence, and by his father to recover for medical expenses and loss of services, it was alleged in the complaint that the infant plaintiff was injured while riding as a passenger in an automobile operated by his mother, with the knowledge and consent of defendant, the owner. The complaint did not allege that the operator of the automobile was negligent, nor was the action tried on that theory. The negligence alleged was that of the defendant owner in knowingly, maintaining the automobile in a defective and dangerous condition and permitting the use thereof by the operator and the infant plaintiff while it was in such condition, without warning of such defect. Judgment in favor of defendant, entered on the verdict of a jury, affirmed, with costs. No opinion. Hagarty, Johnston, Adel and Nolan, JJ., concur; Lewis, P. J., dissents and votes to reverse the judgment and to grant a new trial because of errors in the charge, with the following memorandum: Inconsistencies in the charge were not clarified before the ultimate presentation of the case to the jury. The jury was instructed, at the plaintiffs’ request, that they should find a plaintiffs’ verdict if they found “ the accident was the result of the combined negligence of the defendant and of the mother * .” Thereafter, the jury was further instructed that if the mother of the infant plaintiff knew of the defective condition of the car prior to the happening of the accident, the defendant could not be held responsible. Exception was taken to the latter portion of the charge.