Opinion
February 5, 1959
Judgment in favor of plaintiffs reversed, the verdict in favor of plaintiffs vacated, on the law and on the facts, and a new trial ordered, with costs to appellant to abide the event. On this record the verdict in this personal injury negligence action is against the weight of the credible evidence. The accident was the result of horseplay among young boys at a recreational playground ( Blume v. City of Newburgh, 291 N.Y. 739). Involved were impulsive acts, and it does not follow that the general supervision, concededly required of defendant, would have prevented the events which occurred. (See Ohman v. Board of Educ., 300 N.Y. 306; cf. Lopez v. City of New York, 4 A.D.2d 48, affd. 4 N.Y.2d 738.) Thus, it does not appear, although it may not be said as a matter of law, that the alleged insufficiency of supervision during the morning in question was the proximate cause of the accident. And in the circumstances continuous direct supervision was hardly required. Moreover, had the younger boys, plaintiff and his playmate, been interested in obtaining assistance they could have accomplished this by the slight effort required in repairing to the recreation office, where the supervisor was at the time of and immediately preceding the accident. But, in any event, whether the snatching of the ball and the pursuit of the ball-snatcher would not have occurred if the supervisor were present in the immediate vicinity of the oval, should be more profoundly explored upon a new trial.
Concur — Breitel, M.M. Frank, Valente and McNally, JJ.; Botein, P.J., dissents and votes to affirm.