Schultz v. Ti-Ri-Go Camp, Inc.

263 A.D. 850, 31 N.Y.S.2d 683, 1941 N.Y. App. Div. LEXIS 5259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1941
• Status: Published

Opinion

Action by an infant plaintiff for damages sustained when fragments of an exploding aerial bomb struck him in the eye, and by his father for expenses. Judgment reversed on the facts and a new trial granted, with costs to abide the event. While the proof presented a question of fact as to defendant’s negligence, which the jury resolved in favor of the defendant, in our opinion the interests of justice require a new trial at which the facts as to the cause of the accident may be more fully developed without interference. Lazansky, P. J., Carswell and Johnston, JJ., concur; Hagarty and Adel, JJ., dissent and vote" to affirm,'with the following memorandum: No negligence on the part of the defendant was established. The infant plaintiff, a patron of defendant’s summer camp, was a spectator at a display of fireworks put on by the defendant for the entertainment of the campers. The display, took place under the direction of a camp counsellor upon a so-called “ campus ” at a distance variously estimated by plaintiff’s witnesses at 175 to 300 feet from the social hall where the spectators were assembled. The aerial bomb, which caused the injury to the infant plaintiff, was fastened to the ground by means of stones, according to directions. There is no proof of any neglect in the manner of igniting the bomb or in the manner in which it was set in the stones or in directing its course. The fire piece, when ignited, struck the person who ignited it and ricoehetted the intervening distance to the place where the infant plaintiff and others were assembled. (Crowley v. Rochester Fireworks Co., 183 N. Y. 353, 355.)