Opinion
June 9, 1975
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from (1) a judgment of the Supreme Court, Richmond County, entered June 19, 1973, in favor of respondents, upon the trial court's dismissal of the complaint at the close of the entire case, at a jury trial on the issue of liability only and (2) an order of the same court, dated September 12, 1973, which denied plaintiffs' motion for a new trial. Judgment and order reversed, on the law, without costs, action severed and new trial granted on the issue of liability as between plaintiffs and respondents. The appeal presented no questions of fact. Since the complaint was dismissed without the case being submitted to the jury, this court must consider the facts and inferences therefrom in the light most favorable to plaintiffs. On June 4, 1970, plaintiff Vincent Moschella, a 14-year-old freshman at Monsignor Farrell High School, was hit in the eye with a bat while playing the position of catcher during a softball game in his gymnasium class. The infant, who wore glasses, lost the sight of his left eye. Vincent's instructor knew that he always wore glasses and that he was wearing them during the game. The only equipment supplied to the participants in the softball game was a softball and two bats. No protective equipment was furnished to the boys; according to the instructor, the students who were assigned to bring the equipment to the field neglected to bring out the face mask. The instructor said that it was his responsibility to see to it that the mask was made available to the students and that the danger of an accident of the type which ensued would have been reduced or minimized if Vincent had worn a mask. Two expert witnesses called by plaintiffs testified that proper practice requires the wearing of a mask, chest protector and glove by the person playing the position of catcher in a softball game. There was a question of fact for the jury as to whether the failure of defendants to furnish the infant with a mask constituted negligence (Fein v Board of Educ. of the City of New York, 305 N.Y. 611). There was also a question of fact as to whether instructions in safety precautions were ever given to the students (Darrow v West Genesee Cent. School Dist., 41 A.D.2d 897). Additionally, a question of fact was raised as to the assumption of risk by the infant plaintiff (see Arnold v Schmeiser, 34 A.D.2d 568). These questions of fact should have been submitted to the jury. Hopkins, Acting P.J., Cohalan, Christ, Brennan and Munder, JJ., concur.