Newton v. Village of Addison

281 A.D. 945, 119 N.Y.S.2d 463, 1953 N.Y. App. Div. LEXIS 3833

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1953
• Status: Published

Opinion

Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The verdict imposing liability upon the defendant rests upon the jury’s finding that either or both of the two instructors employed by defendant failed to exercise reasonable care in supervising the activities of the plaintiff’s intestate, a boy aged eleven years, and the other children in their charge at the swimming pool when the accident occurred. While the plaintiff’s proofs as to defendant’s negligence are none too satisfactory we incline to the view that a question of fact was presented for determination by the jury (see Noseworthy v. City of New York, 298 N. Y. 76). We conclude, however, that the verdict is against the weight of the evidence and that a new trial should be had at which the facts attending the accident may be more fully developed. It should also be pointed out that proof of the physical conditions at the pool, such as the increase in the amount of water in the pool, if any, and the velocity of the current on the day in question, might be factors bearing upon the question of what constituted proper supervision under the circumstances. All concur. (Appeal from a judgment for plaintiff in an action to recover damages for the death of plaintiff’s intestate, alleged to have resulted by reason of his drowning in a swimming pool maintained by defendant. The order denies a motion for a new trial.) Present — Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ.