Luther v. Novack

In a negligence action by the infant plaintiff to recover damages for personal injury, and by her father to recover damages for medical expenses and loss of services, the plaintiffs appeal from a judgment of the Supreme Court, Rockland County, entered February 27, 1963 after trial upon a jury’s verdict in the defendants’ favor, dismissing the complaint on the merits. Judgment affirmed, without costs. No opinion. Christ, Brennan, Rabin and Hopkins, JJ., concur; Kleinfeld, Acting P. J., dissents and votes to reverse the judgment, and for a new trial, with the following memorandum: The infant plaintiff was 9% years of age when the accident occurred. The jury was charged that even “ immature children,” in the role of plaintiffs, “ must always prove themselves free from negligence.” In my opinion, this charge was erroneous and prejudicial. It is a jury question whether a 9% year old child is sui juris. The jury specifically stated, in their *550verdict for the defendants, that their determination was based upon the infant’s contributory negligence. Under the circumstances, the judgment should be reversed and a new trial granted in the interests of justice, even though there was no exception to the above-quoted portion of the charge.