Gallo v. Surf & Pool Corp. , 4 A.D.2d 762 ( 1957 )

In an action by an infant to recover damages for personal injuries and by her father for medical expenses and loss of services, the appeal is from a judgment entered on the verdict of a jury in favor of the infant for $2,500, and in favor of the father for $750. The verdict in favor of the father was reduced by stipulation to $350. The father seeks to increase the verdict in his favor to $750, pursuant to the provisions of section 584-a of the Civil Practice Act. Judgment unanimously affirmed, with costs. The infant plaintiff, then approximately six years and nine months of age, accompanied by her parents, was present as an invitee on a playground adjacent to a swimming pool, both of which were owned and operated by the defendant. Upon the playground there was an apparatus known as a monkey bar, consisting of steel bars like the rungs of a ladder, designed for the amusement of patrons. The bar had become wet from its use by bathers emerging from the pool. As the infant plaintiff was climbing upon the apparatus her hands slipped on a moist bar, and she fell to the ground, sustaining the injuries complained of. A lifeguard had been assigned to the pool, but there was no evidence of any supervision of the playground. Defendant claims that it breached no duty toward the infant plaintiff, that said plaintiff assumed the risk of the use of the apparatus, and that there was no causal connection between the accident and the defendant’s breach of duty, if any, for the reason that defendant’s duty to the infant plaintiff, if any, was to furnish general supervision of the playground, and such supervision could not have prevented the accident. In our opinion those questions were for the jury to determine. We find no error in the disposition by the Trial Justice of the motion to set aside, as excessive, the verdict in favor of the father of the infant plaintiff. Neither do we find any variance between the complaint and the plaintiffs’ bill of particulars, which, on the record presented, would have required dismissal of the complaint by the trial court or which warrants reversal on this appeal. Present — Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ. [See post, p. 835.]