261 A.D. 843 | N.Y. App. Div. | 1941
Action by infant-plaintiff to recover damages for personal injuries and by his father for expenses and loss of services. The infant, ñve and a half years old, was severely burned when he fell into a smoldering fire which had been built by appellant’s employee on its own property and in the rear of buildings then being constructed by appellant. Judgment in favor of plaintiffs reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. The evidence shows that the infant was a trespasser, or at most a bare licensee and, therefore, the only duty which appellant owed to him was to abstain from affirmative acts of negligence or not intentionally to injure him. (Morse v. Buffalo Tank Corp., 280 N. Y. 110; Mendelowitz v. Neisner, 258 id. 181.) There is no proof that the injuries sustained by the infant were the result of any affirmative act of negligence or of willful negligence on the part of the defendant. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.