Ohman v. Board of Education

275 A.D.2d 840

Opinion

In our opinion there was no causal relation between the absence of the teacher from the room and the happening of the accident. There is no proof upon which a finding that the teacher’s absence from the room was a proximate cause of the accident would be warranted. The proximate cause of the accident was the unforeseen act of the pupil who threw a lead pencil to another pupil. (May v. Board of Education, Union Free School Dist. No. 1, Town of Mamaroneck, 269 App. Div. 959, affd. 295 N. Y. 948; Wilber v. City of Binghamton, 271 App. Div. 402, 405, affd. 296 N. Y. 950; Peterson v. City of New York, 267 N. Y. 204, 206; Blume v. City of Newburgh, 265 App. Div. 965, affd. 291 N. Y. 739; Thompson v. Board of Education of City of N. Y., 280 N. Y. 92; Berner v. Board of Education, Union Free School Dist. No. 1, North Tonawanda, 286 N. Y. 174.) In any event a new trial would be granted because, in our opinion, the verdict is excessive. Nolan, P. J., Johnston, Sneed and Wenzel, JJ., concur; MaeCrate, J., dissents and votes to affirm.