La Rosa v. Great Atlantic & Pacific Tea Co.

244 A.D. 734

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1935
• Status: Published

Opinion

The defendant, which maintained a nearby store, built a fire in the corner of a vacant lot, adjacent to the store, The wind was blowing hard at the time. The infant plaintiff, who, with other children, was playing in the lot, ran after a ball, and when within two or three feet of the blaze her dress caught fire and she was severely injured. Through her father, as guardian ad litem, she brought this action to recover damages, and her father sued to recover for loss of services. They appeal from the judgment entered in favor of the defendant. Judgment reversed on the law and the facts and a new trial granted^ costs to abide the event. The trial justice incorrectly charged the jury relative to the infant plaintiff’s contributory negligence and imputed negligence, and also was in error in granting the defendant’s request to charge that, if the jury found that the infant plaintiff was capable of appreciating the dangers of a blazing fire and, nevertheless, went so near that she was burnt, she was guilty of contributory negligence. We think that, even if the jury found she was capable of appreciating the dangers of a blazing fire, it would still be a question for the jury to say, under the circumstances shown, whether she exercised the care reasonably to be expected of a girl of her age. While no exceptions were taken to the charge of the court, we think there should be a new trial in the interests of justice. Lazansky, P. J., Young, Carswell, Seudder and Johnston, JJ., concur.