Blincoe v. Newsday, Inc.

In an action by an infant to recover damages for personal injury, and by her father to recover damages for medical expenses and loss of services, plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered August 2, 1965, after a jury trial, in favor of the defendant upon the court’s dismissal of the complaint at the end of the plaintiffs’ case. Judgment reversed on the law and a new trial granted, with costs to plaintiffs to abide the event. No questions of fact have been considered. In our opinion, it was error for the trial court to have dismissed the complaint at the end of the plaintiffs’ case. Considering the evidence adduced in the aspect most favorable to the plaintiffs and according them every favorable inference which can reasonably be drawn therefrom (Andersen v. Bee Line, 1 N Y 2d 169, 172). We conclude that whether the newspaper delivery boy was an employee of the defendant publisher or an independent contractor was an issue of fact which should have been submitted to the jury (cf. Matter of Scatola, 257 App. Div. 471, affd. 282 N. Y. 689; Matter of Whitcher, 263 App. Div. 906; Matter of Bergeron, 252 App. Div. 716). Rabin, Hopkins and Benjamin, JJ., concur; Ughetta, Acting P. J., and Brennan, J. dissent and vote to affirm the judgment not only on the ground stated by the trial court, but also on the ground that a prima facie case of negligence was not established.