May v. Board of Education

269 A.D. 959, 58 N.Y.S.2d 127, 1945 N.Y. App. Div. LEXIS 4749

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 1945
• Status: Published

Opinion

In an action to recover damages for personal injuries sustained by the infant plaintiff, and by his father for loss of services, plaintiffs appeal from a judgment entered upon the dismissal of the complaint at the close of plaintiffs’ case. While the infant plaintiff was standing in the playground of the school premises maintained by defendant, three boys without warning and without cause pulled him backward and threw him to the ground, causing him to fall on a clinker on the surface of the playground. The proximate cause of the accident was the unforeseen intervention of the three unknown boys and not the failure of defendant to maintain this playground in a reasonably safe condition. (Clark v. City of Buffalo, 288 N. Y. 62.) Judgment affirmed, with costs. Close, P. J., Hagarty and Adel, JJ., concur; Carswell and Aldrich, JJ., dissent and vote to reverse and to grant a new trial on the ground that plaintiffs made out a prima facie case. (Carlock v. Westchester Lighting Co., 268 N. Y. 345, 350.)