Opinion
December 29, 1959
In an action by an infant to recover damages for personal injuries, and by his mother for medical expenses and loss of services, the appeal is from a judgment entered on a jury's verdict in favor of the infant and his mother. The infant testified that while walking downstairs at a moderate rate of speed he grasped a knob on the top of a post supporting the bannister, that the knob became loose, and that he fell down the stairs. He sustained head injuries which, it is claimed, have resulted in traumatic epilepsy with constantly recurring convulsive seizures, which condition will be permanent. Judgment reversed and a new trial granted, with costs to abide the event. In our opinion, there was no proof that the loose knob was the proximate cause of the fall. We may also note that, even assuming that appellant's negligence was the cause of the fall, the verdict is grossly excessive unless predicated on a finding that the infant sustained an injury to his head resulting in traumatic epilepsy. Any such finding is against the weight of the credible evidence. His mother's denials that she had ever told any doctor that the infant had had a seizure prior to this accident are unworthy of belief, in the light of repeated entries in the records of three hospitals that she had. It is established by the testimony of respondents' doctor, who examined the infant a few hours after the accident, that he had suffered no fracture, laceration or bleeding, that he seemed to be all right, and that nothing was prescribed for him. There is no testimony by any qualified expert that a fall such as that described by the infant would result in injuries of the gravity claimed. (See Della Croce v. City of New York, 3 A.D.2d 920.) Nolan, P.J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur.