Opinion
April 30, 1962
In a negligence action by the infant plaintiff to recover damages for personal injuries and by his father to recover damages for loss of his son's services and medical expenses, the defendant Board of Education of the City of New York appeals from so much of a judgment of the Supreme Court, Queens County, entered April 4, 1961, upon a jury's verdict after trial, as is in favor of the infant and his father against it. At the end of the entire case the court dismissed the complaint as against the defendant the City of New York; there is no appeal with respect to such dismissal. Judgment, insofar as appealed from, reversed on the law, without costs, and complaint dismissed. We have considered all the facts and if we did not reverse on the law and dismiss the complaint we would have affirmed the findings of fact implicit in the jury's verdict. As the infant plaintiff was mixing and grinding chemicals they flared up, causing him to be seriously injured. He was then 13 years of age. He and a classmate were in a laboratory, with the door closed, working on "science projects" with the approval of the infant plaintiff's teacher. After spending about 10 minutes on their respective projects and without permission to do so, the two boys began to "fool around" with chemicals in glass bottles which were on a shelf in the laboratory. While the infant plaintiff, with knowledge that the chemicals were dangerous, was mixing and grinding them, they were caused to flare up. In our opinion, under all the circumstances, the infant plaintiff was guilty of contributory negligence as a matter of law ( Fox v. Mission of Immaculate Virgin, 285 App. Div. 898, affd. 309 N.Y. 812). Beldock, P.J., Ughetta, Brennan and Rabin, JJ., concur; Kleinfeld, J., dissents and votes to affirm the judgment, insofar as appealed from, on the ground that the record presented issues of fact for determination by the jury with respect to the contributory negligence of the infant plaintiff and the negligence of the defendant Board of Education.