Elefante v. South Brooklyn Railway Co.

Action for damages for personal injuries suffered by an infant, due to defendant’s alleged negligence, and for loss of services and for expenses incurred by his father. Judgment dismissing the complaint at the close of plaintiffs’ proof reversed on the law and a new trial granted, with costs to abide the event. While there was proof in the plaintiffs’ case that the pulsator or machine had been locked and safeguarded one hour before the accident happened, there was also proof that the machine was being used and played upon and operated by a group of boys at the time the accident occurred. This presented a jury question as to whether the machine in fact had been locked and safeguarded, depending upon which portion of the testimony was to be credited. There was also proof that a week before the accident boys had been operating the machine along the rails, which furnished a basis for a finding of constructive notice to defendant of the use to which the machine was being put by children to the detriment of pedestrians. Lazansky, P. J., Hagarty and Carswell, JJ., concur; Adel and Close, JJ., dissent and vote to affirm.