Lauer v. Canada Dry Ginger Ale, Inc.

Action in which a truck’s left rear wheel," while turning a comer, crushed a part of the foot of a boy seated in a toy wagon pushed by an older child. Judgment for defendant and order denying motion to set aside the verdict and for a new trial reversed on the law and the facts and a new trial granted in the interests of justice, costs to appellant to abide the event. The charge of the court did not with sufficient clarity state the law applicable to the situation. The jury should have been told that plaintiff might prevail if defendant’s negligence was the sole proximate cause of plaintiff’s injuries or if that negligence was the concurring proximate cause with the negligence of Dorothy. Of course those questions are to be considered in connection with whether or not plaintiff was negligent, which negligence would prevent a recovery. Imputable negligence was not involved as between the two children, who were, mere playmates. In a proper sense one child was not in charge of the other. Imputable negligence could be involved only if a question relating to the propriety of the parents’ allowing plaintiff out on the street, under the circumstances, were litigated. Lazansky, P. J., Young, Carswell, Davis and Johnston, JJ., concur.