179 Misc. 614 | N.Y. Sup. Ct. | 1943
The infant plaintiff brought this action through his mother, as guardian ad litem, for personal injuries claimed to have been suffered by reason of the alleged negligence of the defendant. The mother, besides acting as guardian ad litem, brought a separate cause of action to recover for loss of services and for medical expenses incurred on behalf of the infant plaintiff.
Plaintiff testified that he was invited to come upon defendant’s premises by a son of one of defendant’s tenants. He admitted that he had placed his hand upon the flowerpot before it fell upon him. Evidence was offered by defendant to the effect that the plaintiff had climbed up the side of the post and then placed his arms around the flowerpot and that he caused it to tumble over on him. The son of defendant’s tenant testified that plaintiff was not playing with him at the time of the accident. The jury was instructed that in order to recover the infant plaintiff had to establish that he was an invitee; that he was free from contributory negligence; and, finally, that defendant had been negligent.
The jury inquired in a written message: “ Is the owner legally required to see that the flower pot should have been properly fastened at all times? ” With the consent of counsel the court instructed the jury that: “ The owner of the property was under the duty as owner of the building to use reasonable care to keep the premises in a reasonably safe condition.” Shortly before the verdict was announced the following message was received from the jury: “ Gan we find for the plaintiff and award him the amount of the hospital bill charges, recommending that this money will be paid to the hospital only?” Thereupon, the court, with the consent of counsel, instructed the jury: “ If the jury find for the plaintiffs any award for the hospital bill charges must be made to the mother, Dorothy Reilly.” The jury returned a verdict for the defendant against the infant plaintiff, the foreman stating that no allowance of damages was made in favor of the infant plaintiff. A verdict was returned in favor of the plaintiff mother in the sum of $532, the amount of the hospital bill. The jury was then polled as to each verdict and was unanimous in both instances.
A verdict against an infant with a verdict for the parent for expenses in a negligence action might have to be considered inconsistent and open to speculation. Here, however, it clearly appears that it was the intention of the jury to make no allowance whatsoever either to the infant or to the mother except to require the payment to the hospital of the amount of its bill. Under these circumstances, the determination in the infant’s action in favor of the defendant results logically in exonerating the defendant from responsibility for this bill.
An analysis of the evidence in the instant action shows that the verdict for the defendant was clearly in accord with the weight of the credible evidence. It established that the defendant was not liable for the infant’s injury. The verdict destroyed