SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 17, 1968
EILEEN GALLAGHER, RESPONDENT, ET AL., PLAINTIFF,
CITY OF NEW YORK, DEFENDANT, AND BOARD OF EDUCATION OF THE CITY OF NEW YORK, APPELLANT
In a negligence action to recover damages for personal injuries, this appeal is from a judgment of the Supreme Court, Kings County, dated December 23, 1966, upon a jury verdict against appellant.
Christ, Acting P. J., Brennan, Hopkins, Munder and Martuscello, JJ., concur.
On January 21, 1958, plaintiff, then 13 years old, was raped as she proceeded on an errand pursuant to her teacher's direction in John Marshall Junior High School at Park Place and Rochester Avenue in Brooklyn. During trial on the liability issue, the trial court admitted into evidence three reports of prior incidents which had occurred at this school. One report dealt with a pushing incident 20 months before the instant attack in which a girl was knocked down several steps by unknown boys while proceeding to class after arriving late at school. The second report describes an incident which occurred four months before the instant attack and in which one male student who also was late in arriving was proceeding to class and was "slightly scratched" on the left cheek by a knife wielded by another male student. The third report, dealing with an incident which occurred a year before the instant one, involved a female student who was threatened with a knife by an unknown person who put his hand on her and was frightened away by her screams. Although it is well established that, where conditions were substantially the same, evidence of prior similar accidents is admissible to prove that the party responsible, if any, had notice of such condition (see Richardson, Evidence [9th ed.], § 201), it was error to admit the first two reports because they do not describe conditions which were substantially the same as in the instant case. Moreover, in our opinion, the verdict of $66,000 was excessive.
Judgment reversed, on the law and the facts, and a new trial granted, with costs to abide the event.
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