Willis v. Young Men's Christian Ass'n of Amsterdam

• Decision Date: 02 March 1970
• Court: New York Supreme Court — Appellate Division
• Parties: Deborah WILLIS, an Infant, by George E. Willis, Her Parent, et al., Appellants, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF AMSTERDAM et al., Respondents.

Page 967

307 N.Y.S.2d 967

34 A.D.2d 583

Deborah WILLIS, an Infant, by George E. Willis, Her Parent, et al., Appellants, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF AMSTERDAM et al., Respondents.

Supreme Court, Appellate Division, Third Department.

March 2, 1970.

Floyd J. Reinhart, Amsterdam, for appellants.

Mullarkey, Horigan & Harrigan, Lewis M. Mullarkey, Amsterdam, for respondent, YMCA.

Borst, Smith, O'Loughlin, Smith & Abbey, Donald F. Smith, Schenectady, for respondent, Peggy Day.

Before HERLIHY, P.J., and STALEY, GREENBLOTT, COOKE and SWEENEY, JJ.

STALEY, Justice.

Appeals from (1) judgments of the County Court of Montgomery County in favor of both defendants, entered March 17, 1969 and March 24, 1969, and (2) from an order of said court, entered April 2, 1969, which denied plaintiffs' motion to set aside the verdict.

The main issue on this appeal is whether or not the trial court erred in refusing to charge that plaintiff, Deborah Willis, was free from contributory negligence as a matter of law.

Plaintiff, Deborah Willis, age 13, was attending a Y.M.C.A. 'sleep in' on April 13, 1966 when she was injured. About 25 school girls under the age of 15 were participating in this program. They paid $.50 as a fee and were to sleep all night in sleeping bags on the floor in the 'Y' recreation room. Defendant Day, age 17, had been employed by the 'Y', but on the night in question was acting voluntarily in a supervisory capacity. At about 12:30 A.M., after participating in swimming, dancing and having a snack, the girls were instructed to get ready for bed. The group bedded down in a 30 foot long room and the infant plaintiff selected a spot near a wall under the overhang of a coat rack which had a shelf. After lights out, defendant Day was requested by another member of the group to get her a pillow which had been placed on the shelf over the plaintiff. While defendant Day was pulling the pillow from the shelf, a broken plastic arm from a chair fell striking the infant plaintiff in the mouth chipping her front teeth. After the trial, the jury rendered a verdict of no cause of action in favor of the defendants.

The trial court properly charged burden of proof as it related to the infant plaintiff's contributory negligence, and the rules of negligence as they apply to an infant of the age of 13. (Rodford v. Sample, 30 A.D.2d 588, 290 N.Y.S.2d 30; 1 NYPJI 137.) At the end of the charge, plaintiffs' attorney requested the trial court to charge that the infant plaintiff was free from contributory negligence, which was refused.

'The issue of contributory negligence is peculiarly within the province of the trier of the facts.' (Kenton v. State of New York, 29 A.D.2d 64, 65, 285 N.Y.S.2d 758, 760, affd. 23 N.Y.2d 663, 295 N.Y.S.2d 489, 242 N.E.2d 744.) The determination as to whether or not a plaintiff is free from contributory negligence as a matter of law is usually established only upon unusual or exceptional factual situations. (Greelish v. New York Cent. R.R. Co., 29 A.D.2d 159, 286 N.Y.S.2d 61, affd. 23 N.Y.2d 903, 298 N.Y.S.2d 308, 246 N.E.2d 161.)

In our opinion the evidence adduced at the trial was not so heavily weighted in favor of the infant plaintiff's freedom from contributory negligence as to warrant a charge by the trial court that she was free from contributory negligence as a matter of law. From the infant plaintiff's own testimony, the facts relating to her choice of a place to lie down and the facts surrounding the accident were sufficient to submit to the jury the question of contributory negligence of the infant plaintiff as well as the negligence of the defendants. Although in this case, they could have, and probably did, decide the issue of contributory negligence in favor of the infant plaintiff, we cannot say that the trial court erred in letting the jury pass upon the question. (Camardo...