Opinion
December 4, 1961
In a negligence action to recover damages for personal injuries, loss of services and medical expenses, defendant appeals from a judgment of the Supreme Court, Queens County, entered August 24, 1960, after trial, upon a jury verdict as to liability, in favor of plaintiffs. Defendant's motions to dismiss the complaint, to set aside the verdict and for a directed verdict were denied ( 29 Misc.2d 19). Judgment affirmed, with costs. The infant plaintiff was injured while participating in a game conducted at the school gymnasium during a regularly scheduled physical education class. A group of boys was placed on one side of the gymnasium and another group was placed on the other side. A ball was placed in the center of the floor. Each boy on one side was given a number, and corresponding numbers were given the boys on the other side. The numbers were assigned at random to the boys on both sides. When a number was called the two boys who had the same assigned number would race toward the ball and each would attempt to kick it first. Plaintiff was injured as a result of being kicked by a boy who was much taller and much heavier than he. In our opinion the evidence was sufficient to present a prima facie case. The doctrine of assumption of risk, urged by defendant on this appeal, was not submitted to the jury in the charge of the court; and no instruction was requested by defendant with respect thereto. Nor did defendant take any exception to the charge to the jury. Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur. [ 29 Misc.2d 19.]