Opinion
December 29, 1975
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of Supreme Court, Kings County, entered May 10, 1973, in favor of defendants, upon the trial court's dismissal of the complaint at the close of plaintiffs' case. Appeal, insofar as it is against the defendant city, dismissed without costs. Plaintiffs consented to the dismissal as against that defendant. As between plaintiffs and the defendant board of education, action severed and judgment reversed, on the law, and new trial granted, with costs to abide the event. No fact questions were presented on this appeal. The possibly unintentional act by a 13-year-old boy of placing his hand in the hinge side of a doorjamb, which resulted in the crushing of his hand when the door was closed by means which are not altogether clear, is not contributory negligence as a matter of law. The jury should have had an opportunity to consider whether, under the circumstances, that act was contributorily negligent (cf. L'Hommedieu v Delaware, Lackawanna Western R.R. Co., 258 Pa. 115; Shaller v J. J. Realty Co., 244 App. Div. 750). Plaintiffs made out a sufficient case of negligence to go to the jury. However, the trial court correctly ruled inadmissible the purported admissions of a former teacher, not present at the trial, that he had closed the door on plaintiff's hand. There was no showing that the teacher was authorized to make any admissions or other statements (see Prado v Onor Oscar, Inc., 44 A.D.2d 604; Maggio v Mid-Hudson Chevrolet, 34 A.D.2d 567). Rabin, Acting P.J., Martuscello, Latham, Margett and Munder, JJ., concur.