Opinion
November 20, 1944.
Action to recover damages for personal injuries received by plaintiff, who was employed in defendant's home as a domestic servant. The defendant's nine- or ten-year-old son ran into the plaintiff while she was performing her duties in the kitchen; she fell and injured her ankle. Judgment entered on the verdict of a jury in favor of plaintiff reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. There is no evidence in the record to support the findings of fact implicit in the verdict of the jury. The complaint alleges active negligence in that the defendant pushed or propelled the child against the body of plaintiff. There is no evidence of active negligence by the defendant. The statements in respondent's brief, to the effect that the father was chasing the boy, are gratuitous and not supported by any evidence in the record. The complaint also charges passive negligence in that the parent suffered the child to collide with plaintiff. There is no evidence that would support a finding that the parent breached any duty owed to plaintiff, or a conclusion that he is liable for participation in the infant's alleged tort. (Cf. 1 Shearman and Redfield on Negligence, [Rev. ed.], § 144.) Carswell, Acting P.J., Johnston, Adel, Lewis and Aldrich, JJ., concur.