Bucholtz v. Grimmer , 376 N.Y.S.2d 277 ( 1975 )

— Judgment unanimously affirmed, with costs. Memorandum: Plaintiff was injured when a tree limb fell on his foot while he was helping his brother-in-law saw the limb off a willow tree in the backyard of defendant, plaintiff’s mother-in-law. Defendant had rented a saw, given it to her son and asked plaintiff to help her son cut down some trees. Plaintiff contended that defendant was answerable for the negligence of her son under the doctrine of respondeat superior and negligent in her own right for giving her 17-year-old son a chain saw to use, which constituted an unreasonable risk of harm to plaintiff if improperly used (see Lichtenthal v Gawoski, 44 AD2d 771; Steinberg v Cauchois, 249 App Div 518, 519). The court charged the jury that plaintiff could recover under either theory, and the jury returned a verdict in his favor. The theories were properly charged and there remained only issues of fact on negligence and contributory negligence which the jury found in plaintiff’s favor. While the court improperly sustained objections to defense counsel’s questions of plaintiff’s understanding of the danger (see Richardson, Evidence [10th ed], § 364, p 334), the error does not constitute reversible error in view of the examination as a whole. (Appeal from judgment of Erie Supreme Court in negligence action.) Present — Marsh, P. J., Simons, Mahoney, Goldman and Del Vecchio, JJ.