263 A.D. 927 | N.Y. App. Div. | 1942
Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Upon our examination of the record, we conclude that the finding of negligence is against the weight of evidence. Aside from the testimony of plaintiff’s witness that, in his opinion, more than the one playground attendant assigned to supervise this playground was required for adequate supervision thereof, it is doubtful whether plaintiff adduced sufficient evidence to make out a prima facie case (Fritz v. City of Buffalo, 277 N. Y. 710; Curdo v. City of New York, 275 id. 20; Peterson v. City of New York, 267 id. 204), and the opinion evidence was incompetent, (Lowery v. Syracuse University, 258 App. Div. 844.) Furthermore, the court’s charge to the jury failed adequately to define the issues, Although no objec
