Opinion
October 10, 1946.
Appeal from the Municipal Court of the City of New York, Borough of Queens, CARIELLO, J.
John W. Olmstead, Albert P. Thill and John P. Smith for appellant.
Arthur M. Waldman for respondents.
MEMORANDUM
The court erred in refusing to charge as requested by defendant that it owed to the customer the exercise of reasonable care only. On the charge the jury here could have found for plaintiffs simply because the child was attracted to the opening, regardless of whether the place was reasonably safe or the defendant in the exercise of reasonable care could have anticipated a child's fingers might go into the opening.
The judgment should be unanimously reversed upon the law and new trial granted, with $30 costs to defendant to abide the event.
MAcCRATE, SMITH and FENNELLY, JJ., concur.
Judgment reversed, etc.