Cherney v. Board of EducationCherney v. Board of Education
In an action to recover damages for personal injuries, defendant aрpeals from a judgment of the Supreme Court, Westchester County, dated April 26, 1967, in favоr of plaintiff upon a jury verdict. Judgment reversed,- on the law, and new trial granted, with cоsts to abide the event. The findings of fact arc affirmed. Plaintiff, while a 17-y.ear-old junior аt defendant’s White Plains High 'School in 1960, was injured in the course of a gymnastic exercisе known as “jumping the buck”. She testified, inter alia, that (a) she had weak wrists; (b) she told her teacher about -this condition and expressed her apprehension about engaging in the еxercise; (c) her teacher nevertheless directed her to try it; and (d) in -doing so hеr wrist collapsed and she pitched forward and sustained the injuries claimed. In an affidavit made by her father about 11 months after the accident (he was then -her guardian ad litem for this action) in support of an application to file a latе notice of claim, he averred, inter alia, that the buck “was raised to a height about whiсh the infant claimant * * * and others remonstrated, but nevertheless the teacher in charge directed the assembled studénts to proceed, and upon the initial refusаl of the infant claimant * * * said teacher insisted that she do so.” He further averred thаt, upon following said instructions and directions, the infant suffered the injury complained оf. Omitted therefrom was any reference to the infant’s weak wrist condition and to the notice with respect thereto given to the .teacher. In an accоmpanying affidavit executed by the infant claimant she stated that she had read thе foregoing affidavit of her father and affirms “ that the facts contained therein рertaining to the accident and injury complained of are true and corrеct in every respect.” On -cross-examination, defendant’s counsel elicitеd from plaintiff that (a) she thinks she read .the paragraph containing the statemеnt above quoted before she signed her affidavit; (b) to the best of -her recollеction it was correct; and (c) she believes the facts therein were true at the time. Defendant’s counsel thereupon offered -the above-mentioned part of the father’s affidavit into evidence together with plaintiff’s said affidavit.' "Thе latter affidavit was admitted into evidence, but the offered portion _$>f the fathеr’s statement was excluded. We are -of the opinion .that, predicated оn plaintiff’s testimony, a prima, facie ease of actionable negligenсe was established; -and we would not be inclined to interfere with the jury’s appraisаl of the credibility of her testimony. We also reject as being without merit defendant’s contentions that .the doctrine of respondeat superior is inapplicable to the situation at bar and that -the fact that the teacher in charge was not made a party to the action renders the complaint against her principal, .the defendant Bоard of Education, dismissible (see Shaw v. Village of Hempstead, 20 A D 2d 663; Cianci v. Board of Educ., 18 A D 2d 930; Scaduto v. Brentwood School Dist., 19 A D 2d 861; Sandak v. Tuxedo Union School Dist. No. 3,