Majority
p. 538Viscest Calabrese, an Infant, by Giuseppe Calabrese, His Guardian ad Litem, et al., Respondents, v. James McCreery & Co., Appellant. Supreme Court, Appellate Term, Second Department, October 10, 1946.
p. 539
John W. Olmstead, Albert P. Thill and John P. Smith for appellant.
Arthur M. Waldman for respondents.
Memorandum The court erred in refusing to charge as requested by defendant that it owed to the customer the exercise of reasonable care only. On the charge the jury here could have found for plaintiffs simply because the child was attracted to the opening, regardless of whether the place was reasonably safe or the defendant in the exercise of reasonable care could have anticipated a child’s fingers might go into the opening.
The judgment should be unanimously reversed upon the law and new trial granted, with $30 costs to defendant to abide the event.
MacCrate, Smith and Fennelly, JJ., concur.
Judgment reversed, etc.