261 A.D. 1089 | N.Y. App. Div. | 1941
Appeal from a judgment dismissing the complaint at the end of plaintiff’s case in an action to recover damages for the death of plaintiff’s intestate. The decedent, alleged to be under the age of sixteen, while acting as an exercise boy on a race track maintained by defendant, was thrown from a race horse and killed. There was testimony which tended to show, and from which a jury might have found: (1) that defendant had reason to know that decedent was under sixteen years of age at the time he was killed; (2) that riding a horse, as decedent was riding, endangered his life and limb; (3) that defendant by its conduct, and its superintendent expressly, permitted decedent to ride as an exercise boy at the time. A finding of such facts would demonstrate that there was a violation of section 483 of the Penal Law and thus establish a cause of action against defendant for the death of the intestate. Judgment dismissing the complaint reversed on the law and a new trial granted, with costs to appellant to abide the event. Lazansky, P. J., Taylor and Close, JJ., concur; Carswell and Adel, JJ., dissent and vote to affirm, with the following memorandum: The criminal statute is to be strictly construed. It should not be given a scope beyond the fair intendment of its language. The regulations defendant enforced respecting access to its premises by its tenants and employees of tenants, by way of identifying them to ascertain who were entitled to have such access, did not impose a requirement that it check up the age of those coming and going to and upon its premises.
