262 A.D. 759 | N.Y. App. Div. | 1941
Liability is sought to be cast upon the respondent herein in three of the causes of action for having bought for his epileptic son, an adult, who was known by respondent to be an epileptic, an automobile, in the use of which, the son, at a time when he had an epileptic fit, ran into a pole and a tree, as a result of which plaintiffs, who were passengers in the ear, were injured. No question is raised as to the knowledge by plaintiffs of the son’s physical incapacity. The complaint states a cause of action (Restatement, Torts, § 390) and it was error to have dismissed the three causes of action. An automobile in and of itself is not a dangerous instrument, but may become such in the hands of a person physically incompetent to handle it. (Gillner v. Wallace, 240 App. Div. 1003.) Order dismissing the first, fourth and seventh causes of action against defendant Harry Blumberg, reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and time to answer extended until ten days after the entry of the order hereon. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.