2 A.D.2d 502 | N.Y. App. Div. | 1956
The judgment, based upon jury verdicts, awards damages to each plaintiff against all three defendants resulting from personal injuries sustained by the infant plaintiff on November 16, 1953, while participating in a physical education class in an elementary school. The accident occurred while the infant plaintiff, then 11 years of age, was participating in a game called ‘‘ jump the stick relay ” in a physical education clas^ conducted and supervised by the defendant, Katharine Denton, a physical education teacher. The defendant Leola Holcomb was the supervising principal of the elementary school in which the accident occurred. The school was one of the schools under the jurisdiction of the defendant Board of Education.
In playing the game of “ jump the stick relay ” the class of girls was divided into four lines. The first two children in line were called upon to take hold of either end of a round wooden stick of small diameter, holding it from 4 to 6 inches above the floor and from 12 to 18 inches in advance of the first child then remaining in line. At a given signal the children holding the stick advanced it toward the line and each child in line was supposed to jump the stick. The game was competitive, and the line which successfully completed jumping the stick first won. The infant plaintiff was third in the line which was called upon to demonstrate the game to the others. The two children at the head of the line were selected by the teacher to hold and advance the stick toward the remainder of the line, which was now headed by the infant plaintiff. As they did so the infant plaintiff fell and again fractured her right forearm. The teacher, the defendant Denton, was standing very close to the infant plaintiff at the time. The infant plaintiff testified that she did not jump — “ They came at me so fast I didn’t have time to jump ”.
The general theory of negligence urged by plaintiffs is that, having or being chargeable with knowledge of her physical condition due to the previous accidents, the principal and teacher should not have directed or permitted the infant plaintiff to participate in the game resulting in her fall because the consequences were reasonably foreseeable.
The defendant Leola Holcomb was the supervising principal •of the elementary school where the accident happened. Her duties, too, were administrative, supervisory, and general in nature. She was responsible for the assignment of classrooms, for discipline in the school, and administrative supervision over the teachers in the school. It does not appear that she had any authority, let alone duty, to personally supervise or to direct the nature of activities or limit the participation of any pupil in a physical education class. The physical education department was a separate arm of the Board of Education, operating in all of the schools. Mrs. Denton, the physical education teacher in immediate charge here, was an agent of the physical education department. It is a matter of common knowledge that in modern times the educational and competency requirements of such a teacher are high. Of necessity the detailed activities of each class and of each student therein must be left to such supervising teacher. As observed in Thompson v. Board of Educ. (280 N. Y. 92, 96): “ Appellant (a principal) could not personally attend to each class at the same time, nor was any such duty imposed upon Mm ”. The fact that the defendant Holcomb knew of the infant plaintiff’s previous injuries, or that the mother had requested her to relieve the child of some gymnasium activities, does not impose liability upon her under the circumstances here. It does not appear that the principal had the power or authority to direct the detailed conduct of a physical education class, or to substitute her judgment for that o'f Mrs. Denton as to the risks of a particular game to a particular pupil, and its does appear that Mrs. Denton, the teacher in immediate charge, had the same information and request directly from the mother.. The evidence does not sustain a finding of negligence on the part of the defendant principal, and the judgment against her should be reversed and the complaint dismissed.
. The defendant Denton was the physical education teacher in immediate charge and supervision of the class and of the infant plaintiff at the time of the accident. She was under a duty to exercise reasonable care to prevent injuries and^ to assign pupils to such activities as were within their abilities, and to properly and adequately supervise the activities. The failure to do so constitutes actionable negligence on the part of the teacher. (Govel v. Board of Educ., supra; LaValley v. Stanford, 272 App. Div. 183.) The questions of her knowledge of the pre-existing physical condition of the infant plaintiff,
, Foster, P. J., Bergan and Zeller, JJ., concur; Halpern, J., .concurs in the opinion as to the defendants, Board of Education and Holcomb, and concurs in the result as to the defendant, Denton, upon the ground that the verdict finding her guilty of negligence is against the weight of evidence.
, Judgment against the defendants Board of Education and Holcomb is reversed, on the law and facts, and the complaint dismissed as against such defendants, without costs.
, Judgment against the defendant Denton is reversed, on the law and facts, and a new trial ordered, with costs to abide the event.