Opinion
May 2, 1949.
In an action to recover damages for personal injuries sustained by a thirteen-year-old pupil in a public school, who was struck in the eye by a lead pencil, thrown in a classroom by another pupil to a third who stepped aside and by a parent to recover for resulting expense and loss, judgment in favor of each plaintiff was entered upon the verdict of a jury against the board of education of the city of New York, the principal of the school and the teacher of the class. The jury were warranted in finding that the accident occurred during the absence from the classroom of the teacher in charge, who was engaged in placing supplies, then being delivered, in a supply closet a short distance down the corridor of the school. Judgment reversed on the law and the facts, without costs, and the complaint dismissed on the law, without costs. There is no claim or proof that the accident was occasioned by any defect in plant or equipment. Claimed negligence is predicated upon failure adequately to supervise the class. In our opinion there was no causal relation between the absence of the teacher from the room and the happening of the accident. There is no proof upon which a finding that the teacher's absence from the room was a proximate cause of the accident would be warranted. The proximate cause of the accident was the unforeseen act of the pupil who threw a lead pencil to another pupil. ( May v. Board of Education, Union Free School Dist. No. 1, Town of Mamaroneck, 269 App. Div. 959, affd. 295 N.Y. 948; Wilber v. City of Binghamton, 271 App. Div. 402, 405, affd. 296 N.Y. 950; Peterson v. City of New York, 267 N.Y. 204, 206; Blume v. City of Newburgh, 265 App. Div. 965, affd. 291 N.Y. 739; Thompson v. Board of Education of City of N Y, 280 N.Y. 92; Berner v. Board of Education, Union Free School Dist. No. 1, North Tonawanda, 286 N.Y. 174.) In any event a new trial would be granted because, in our opinion, the verdict is excessive. Nolan, P.J., Johnston, Sneed and Wenzel, JJ., concur; MacCrate, J., dissents and votes to affirm.