Opinion
February 13, 1945.
Action by an infant to recover damages for personal injuries and by his father for expenses and loss of services. Accepting the most favorable inferences to be derived from plaintiffs' proof, the infant, as a musician employed by defendant, was assigned by it to living quarters in a bungalow 150 feet from its main hotel. In walking at night along a rustic pathway between the bungalow and the hotel, the infant fell at a hole in the pathway about 35 feet from the bungalow, which hole he "felt to be about 5 or 6 inches" deep. Judgment dismissing complaint, in accordance with the granting of a motion by defendant at the close of plaintiffs' case, reversed on the law and a new trial granted, with costs to abide the event. Appeal from order "dismissing plaintiffs' complaint at the close of plaintiffs' case" dismissed, without costs. We are of opinion that a prima facie case of actionable negligence was presented. The title of the action should be amended to show that the infant is a plaintiff and is prosecuting the action by his guardian ad litem. Hagarty, Acting P.J., Johnston, Adel, Lewis and Aldrich, JJ., concur.