Herzberg v. Board of Education

243 A.D. 808

Opinion

In an action to recover compensation for personal injuries and for loss of the infant’s services due to the falling over and upon the infant of a play-slide installed in a public school, judgment dismissing the complaint at the end of the case reversed upon the law and a new trial granted, with costs to appellants to abide the event. The plaintiff made out a prima facie case. It was for the jury to determine whether, in the circumstances disclosed, the defendant exercised reasonable care in permitting the play-slide to be used in an unsecured condition, resulting in its toppling over upon the infant plaintiff. Young, Scudder and Johnston, JJ., concur; Lazansky, P. J., concurs on the ground stated and upon the further ground that there was testimony that showed that the slide was in need of repair, as a result of which the accident may have been caused; Carswell, J., dissents and votes to affirm.