Opinion
January 25, 1943.
Present — Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ.
Defendant appeals from a judgment for $10,000 and costs, entered in favor of the infant plaintiff, and for $500 in favor of the plaintiff-father for medical expenses; and also from an order denying defendant's motion to set aside the verdict and for a new trial. Judgment, in so far as it is in favor of the plaintiff-father, unanimously affirmed, without costs. Judgment, in so far as it is in favor of the infant plaintiff, reversed on the facts, and as to said plaintiff the action is severed and a new trial granted, with costs to appellant to abide the event, unless within ten days from the entry of the order hereon a stipulation be filed in the office of the clerk of Nassau county consenting to reduce the amount of the verdict in her favor to the sum of $5,000; in which event the judgment, as to her, is also unanimously affirmed, without costs. The appeal from the order is dismissed, without costs. The infant plaintiff suffered a linear fracture of the right frontal bone of her head by striking her head against a pipe four inches in diameter which overhung and protruded into an aisle or passageway used by the pupils to gain access to a table in a cafeteria maintained and operated by defendant for the accommodation of the pupils, of which the infant plaintiff was one. The evidence established that defendant was guilty of negligence. ( Stearns v. Schenectady Day Nursery, 288 N.Y. 574; Ryer v. Sheroak Realty Co., Inc., 256 App. Div. 850; Wahrman v. Board of Education, 187 N.Y. 331. ) However, it is our opinion that the judgment in favor of the infant plaintiff is excessive and should be reduced to the amount indicated.