Opinion
April 1, 1963
In a negligence action by the infant plaintiff to recover damages for personal injury and by his father to recover damages for loss of services and medical expenses, the plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered October 26, 1960 after a jury trial, which dismissed their complaint on the merits at the end of the entire case. Judgment reversed, on the law, with costs to plaintiffs, and a new trial granted. The infant plaintiff's hand was crushed by a cable reel while he was "hitching" a ride on the back of the defendant Edison Company's truck. His version (which was strongly disputed) was that the defendant Morton, the driver of the truck, "sticked" his head out of the window, shouted "I'll get you off", increased speed, and then turned into the driveway cut in the company's premises; and that it was during such maneuver that the reel came down on his (the infant plaintiff's) hand. Employees of the company, including Morton, testified that the reels tend to shift on entering the driveway. In our opinion, it was error to dismiss the complaint at the close of the entire case ( Chadwick v. City of New York, 301 N.Y. 176). Under the doctrine of "last clear chance," issues of fact exist as to whether defendants discovered the infant plaintiff in a perilous position and nevertheless proceeded to act in an unreasonable manner so as to cause his injury. Ughetta, Acting P.J., Kleinfeld, Christ, Hill and Hopkins, JJ., concur.