Benedittis v. Board of Education ( 1946 )

Action to recover damages for personal injuries suffered by the infant plaintiff and companion action for medical expenses and loss of services by his father. Judgment for plaintiffs unanimously affirmed, with costs. There was proof upon which a jury could find that the defendant was negligent in failing to have the machine which caused the infant plaintiff’s injuries locked, or in leaving the machine unattended for an unreasonable length of time, or in the teacher failing, although but nine feet away from the machine, to observe from time to time whether or not the machine was being used or tampered with by any of the other students. This negligence was concurrent with the act of a third person in stepping on the foot treadle while the infant plaintiff was endeavoring to extricate a piece of .metal from the machine. But for the negligence of the teacher, no act of a third person could have operated to the” injury of the infant plaintiff. Hence it may not be said that the negligence of the defendant was not the proximate or concurring cause of the infant plaintiff’s injury. The proof was such that the jury were free to find that the infant plaintiff was not warned against using the machine in doing the work which had been assigned to him. Present — Lewis, P. J., Carswell, Johnston, Adel and Nolan, JJ.