Hasicka v. Board of Education , 84 N.Y.S.2d 370 ( 1948 )

Action to recover damages for personal injuries sustained by an infant plaintiff when, while playing with a ball, he fell by reason of a depression in the cement surface of a school yard adjacent to a base path marked out by defendant. Judgment affirmed, with costs. There was explicit testimony that plaintiff’s foot was caught in an overhang between the white line and the depression. The photographs offered in evidence do not establish the contrary. At the times they were offered, Exhibits F. G. H and I for identification were properly excluded for lack of proof that they were fair representations when taken on April 9, 1948, of the condition which existed at the time of the accident on March 20, 1947. Nolan, P. J., Carswell, Johnston and Sneed, JJ., concur; Wenzel, J., dissents and votes to reverse the judgment as being contrary to the weight of the credible evidence, with the following memorandum: It appears clearly to me from the photographs which are plaintiff’s Exhibit 2, and defendant’s Exhibits B, C, D, L, M and N, that the defect in the pavement was of such a character that there was no overhang under which the plaintiff’s foot could have been caught, nor any conformation in which it could have become wedged. In my opinion, the plaintiff told the truth when he said he “tripped”.