Opinion
May 5, 1969
In a negligence action to recover damages, inter alia, for personal injuries sustained by the infant plaintiff, defendant appeals from an order of the Supreme Court, Kings County, dated July 15, 1968, which set aside a jury verdict for defendant and granted a new trial. Order affirmed, with costs. We deem it pertinent to note that, if this verdict had not been set aside and plaintiffs had appealed from a judgment entered thereon, we would have reversed and granted a new trial because of several prejudicial errors committed by the trial court. The first error was the receipt in evidence of the history part of a hospital record, which contained a description of the accident furnished either by the infant plaintiff's mother (not a party to this action) or by his father (who did not see the accident). The second error was the submission of the question of the infant plaintiff's contributory negligence to the jury. The proof in this case was to the effect that the infant plaintiff, 4 years and 10 months old at the time of the accident, was struck by defendant's car while he was crossing the street at the direction and under the supervision of his mother. On such proof we believe that, as a matter of law, the infant plaintiff was not contributorily negligent and that question consequently should not have been submitted to the jury for its determination. Brennan, Acting P.J., Hopkins, Benjamin and Munder, JJ., concur; Martuscello, J., concurs in result.