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BETTY TORRES v. FRANK VIZZARE (05/19/69)

May 19, 1969

BETTY TORRES, AN INFANT, BY HER GUARDIAN AD LITEM, JESUS TORRES, ET AL., RESPONDENTS,
v.
FRANK VIZZARE, APPELLANT



Appeal by defendant, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated January 6, 1969, as (1) set aside a jury's special verdict that the infant plaintiff was contributorily negligent and (2) granted a new trial to determine that issue.

Christ, Acting P. J., Brennan, Hopkins, Munder and Martuscello, JJ., concur.

In this personal injury negligence action, the infant plaintiff was seven years of age when she was struck by defendant's automobile while playing ball on the street. The question of whether she was free from contributory negligence was submitted to the jury which returned a special verdict finding her guilty of such negligence. The trial court thereafter set aside this verdict and ordered a new trial solely on this issue. In our opinion, it was an abuse of discretion to do so. The evidence adduced at the trial was not so heavily weighted in favor of the infant plaintiff's freedom from contributory negligence as to warrant the court's setting aside of the jury's verdict. As a matter of law, it cannot be said that the infant plaintiff was non sui juris. Therefore, the question of whether she acted as a reasonably prudent person of her age and experience was one properly submitted to the jury (Camardo v. New York State Rys., 247 N. Y. 111; La Mont v. Anderson, 1 A.D.2d 729) and there is no basis on which to set aside its verdict.

Disposition

Order reversed insofar as appealed from, with costs, motion to set aside said verdict denied; and verdict reinstated.

19690519

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