Opinion
December, 1934.
Action by the infant plaintiff to recover for personal injuries sustained when she fell over the stump of a tree in the playground of defendant's school, and by her mother to recover for expenses and loss of services. Order setting aside verdicts and dismissing complaint and judgment entered thereon reversed on the law and a new trial granted, costs to appellants to abide the event. It was error for the court to strike from the record the testimony of the witness Ina C. Atwood that the tree had been broken down a day before the accident, even though she afterwards testified that she did not know of the fact of her own knowledge. She was an adverse witness, called by plaintiffs, and it was for the jury to determine the effect of her explanation given on her cross-examination. ( Becker v. Koch, 104 N.Y. 394; Sharp v. Erie R.R. Co., 184 id. 100.) Although no exception was taken to the ruling of the court, in our opinion the interests of justice require that there should be a new trial because there are clear indications that defendant knew, or should have known, of the existence of this stump in the playground at a time before the accident sufficient to give it notice thereof. If the stump or broken tree was in the playground a sufficient time before the accident to give defendant notice thereof, actual or implied, then it was a question for the jury to determine whether the existence of the stump or broken tree was a source of danger to children playing in the playground controlled by defendant. Lazansky, P.J., Young, Scudder and Davis, JJ., concur; Carswell, J., not voting.