Overend v. City of New York , 271 A.D.2d 975 ( 1947 )

The infant plaintiff, fifteen years of age, fell from a slope in a park and over a retaining wall, approximately twenty feet high, to a concrete driveway at street level. The action is to recover damages for personal injuries sustained by the infant plaintiff and for expenses by the coplaintiff. Judgment for plaintiffs reversed on the law and the facts and a new trial granted, with costs to abide the event. The version of plaintiffs as to the manner of the happening of the accident is against the weight of the credible evidence. It was" error to admit in evidence plaintiffs’ Exhibit 12, a picture taken months after the happening of the accident and showing a group of boys on the slope. This picture is not a fair representation, as it was conceded that the children in the photograph were not the same children about whom a witness testified, and the posed group in the picture cannot serve as corroboration of proof of play by children prior to the accident. It was error for the court to advise the jury that it might take into consideration, in determining liability, the proximity of the scene of the accident to a playground. The scene of the accident was a park. There was no playground in proximity to it and the element of a playground should not have been presented to the jury for consideration. (Cf. Collentine V. City of New Torlc, 279 N. Y. 119.) Hagarty and Carswell, JJ., concur; Nolan, J., concurs in the result; Lewis, P. J., and Johnston, J., concur to reverse on the law and the facts, but as to granting a new trial they dissent and vote to dismiss the complaint on the law, on the ground that no actionable negligence on the part of the defendant was proved.