
    Deborah Willis, an Infant, by George E. Willis, Her Parent, et al., Appellants, v. Young Men’s Christian Association of Amsterdam et al., Respondents.
    Argued March 4,1971;
    decided May 13,1971.
    
      
      Floyd J. Reinhart for appellants.
    I. Infant plaintiff was not negligent and the court should have so charged as requested. II. The record shows repeatedly that Peggy Day was a long time employee of the YMCA and in the capacity of a counselor at the time of the accident. III. The YMCA and its employee, Peggy Day, were negligent. (Tantillo v. Goldstein Bros. Amusement Co., 248 N. Y. 286; Riker v. Boy Scouts of Amer., Saratoga County Council, 8 A D 2d 565.)
    
      Lewis M. Mullarkey for Young Men’s Christian Association of Amsterdam, respondent.
    I. The charge of the court as to the negligence of infant plaintiff was in all respects proper and the negligence of plaintiff was properly left to the jury. (Rodford v. Sample, 30 A D 2d 588; Camardo v. New York State Rys., 247 N Y 111.) II. The record shows that Peggy Day was a voluntary worker, in her capacity of counselor, at the time ^ of the accident. III. The YMCA and Peggy Day were not negligent. (Tantillo v. Goldstein Bros. Amusement Co., 248 N Y 286; Riker v. Boy Scouts of Amer., Saratoga County Council, 8 A D 2d 565.)
    
      Bichard C. Bendall for Peggy Day, respondent.
    I. The Appellate Division was correct in finding that plaintiff-appellant was not entitled to a charge to the jury stating her freedom from contributory negligence as a matter of law. (Kenton v. State of New York, 29 A D 2d 64, 23 N Y 2d 663; Greelish v. New York Cent. R. R. Co., 29 A D 2d 159, 23 N Y 2d 903.) II. The Tantillo case and the Biker case, cited by appellant, are not applicable to the instant case. (Tantillo v. Goldstein Bros. Amusement Co., 248 N Y 286; Riker v. Boy Scouts of Amer., Saratoga County Council, 8 A D 2d 565.)
   Bergan, J.

The Amsterdam YMCA on April 13, 1967 conducted an “ indoor sleep-in ” to which it invited young people to participate for a small fee. The participants took part in swimming, dancing and other activities; and slept in sleeping bags on the floor. The youth secretary and counselors told participants at what time to go to bed.

Plaintiff Deborah Willis, then 13 years old, was a participant. She lay down about one foot from the wall and one foot from the girl next to her. There was a built-in rack along the wall at this point. While defendant Peggy Day, a counselor, was taking a pillow from the shelf over the rack she pulled off the plastic arm of a chair which had been left under the pillow. This fell on plaintiff and injured her.

The main issue on appeal is, as the Appellate Division observed, whether plaintiff was entitled to the charge to the jury she requested that she was 1 free from contributory negligence ”.

Under the facts of this record the infant plaintiff was not required in the exercise of care to do anything other than that which she did do: lie down to sleep on the floor. It is the general rule that contributory negligence should not be charged ‘‘ if there is no or insufficient evidence to support it ” (65A C. J. S., Negligence, § 293, p. 1032). Where plaintiff is in fact free from contributory negligence it is not error to refuse to instruct and submit to the jury on this subject (Bernard v. Bohanan, 203 Va. 372).

In dealing with the obligation of a passenger in a private airplane involved in an airport accident, Judge Gibson, writing for the Appellate Division in Gillman v. Liberty Airport Auth. (32 A D 2d 296, 300), observed: “For purposes of the retrial, it should be noted that it was error * * * to instruct the jury that it might find plaintiff guilty of contributory negligence ’ ’.

At almost the same time, the Second Department reached a similar conclusion excluding contributory negligence in the case of a passenger in a car (Meyer v. Brown-Harter Cadillac, 32 A D 2d 1045). Compare the exclusion of contributory negligence in cases of statutory liability (Koenig v. Patrick Constr. Corp., 298 N. Y. 313).

The Judges of this court are unanimous in the view that infant plaintiff was not negligent and was entitled to the charge requested; but they are divided on the question of defendants’ negligence. On that a majority are of opinion negligence has been sufficiently established to go to the jury.

This was the law of the case as it was decided at Trial Term where the Judge had denied defendants’ motions to dismiss at the end of plaintiffs’ case and did not grant them at the end of the whole case or later. Thus the holding of the Supreme Court at the time of judgment was that a case had been made out prima facie against both defendants, although judgment in their favor followed a verdict which could have been based, consistently with the Judge’s charge, alternatively on a finding of no negligence of defendants in fact; or of negligence of infant plaintiff in fact.

The Appellate Division, affirming the judgment entered on the verdict, did not disapprove the ruling of the Trial Term that a case had been made out prima facie against both defendants and its general affirmance sustained that decision. Its comment that the jury “ could have found ” the plaintiffs failed to establish defendants’ negligence is consistent with the Trial Judge’s ruling that a case had been made out for the jury.

Thus, on the legal sufficiency of the proof of negligence both the Appellate Division and the Trial Term were of opinion a case had been made out against defendants sufficient to go to the jury. The main legal issue argued in the Appellate Division, on which that court divided, was contributory negligence. In this court defendant YMCA argues that a case of negligence prima facie was not made out against it; but defendant Day does not make that argument.

In inviting, for a fee, young children to sleep on the floor of its premises, the YMCA owed a duty commensurate with the special responsibility it had assumed to its charges to inspect and guard against danger of injury. Since pillows would be used, and apparently were stored on the ledge from which they could be pulled down, it seems not unreasonable to expect that care would be taken that loose objects heavy enough to inflict injury would not be left there.

It has been noted that although persons having children entrusted to their care are “ not the absolute insurers ” of their safety, they are charged with the highest degree of care ” (Oldham v. Hoover, 140 So. 2d 417, 421 [C. A., La., 1962]). The general rule is that as to children such an undertaking requires “ more vigilance ” than would be required for adults (65 C. J. S., Negligence, § 12, subd. b, p. 588).

As to the foreseeability of this accident it is not substantially different in application of the requirement for due care from the heavy pole of a flag fastened along a wall for a Seout-ORama, loosened when brushed against by a news photographer and shortly after falling to injure plaintiff (Biker v. Boy Scouts of Amer., Saratoga County Council, 8 A D 2d 565).

The need for care may be such as to bring remote consequences within the frame of responsibility, as in the case of the child who slipped in a bathtub and was scalded by hot water while climbing on the edge and reaching for a cord, liability being charged to failure to correct defects in the flow and retention of hot water (Rivera v. City of New York, 10 A D 2d 72, judgment for plaintiff affd. after retrial, 13 A D 2d 941, and revd. on another ground, 11 N Y 2d 856; see, also, generally on the subject, Zalak v. Carroll, 15 N Y 2d 753, and Antinucci v. Heilman, 5 A D 2d 634, opn. by Gibson, J.).

The precise occurrence of the particular accident is not controlling on the question whether there is negligence ‘ ‘ and a person, in order to be negligent, need not have been able to anticipate the particular consequences of his act or omission ” (65 C. J. S., Negligence, § 5, subd. [7], p. 528).

The order should be reversed and a new trial directed, with costs to abide the event.

Breitel, J. (dissenting).

The unfortunate consequence to the infant plaintiff in this accident case is evocative of sympathy, but sympathy cannot supply absent facts establishing, negligence. Nor can inferred concurrent views by the trial court and the Appellate Division, at best reached sub silentio, fill the lack. Nor can the failure of the nominally compensated youthful counselor to raise the question bar the persistent urging of the real defendant, the YMCA, that there is such a lack of evidence.

The record is wholly silent as to the placement of the plastic chair arm on the shelf. There is no evidence who placed it there; it may have been placed there by another child. There is no evidence how long it had been there; it may have been placed there minutes before the accident. There is no evidence of the height of the shelf or the height of the young counselor who removed the pillow, dimensions which would bear on the opportunity or feasibility to see over the shelf. There is nothing except the fact that the chair arm fell when the pillow was taken from the shelf.

Cases involving placement by the host defendant of a flag, as in Riker v. Boy Scouts of Amer., Saratoga County Council (8 AD 2d 565), are irrelevant just because the defendant’s agents were shown to be responsible for the placement. For parallel reasons, the failure of an owner to exercise care to prevent a patently dangerous condition of long standing, therefore providing constructive notice is not comparable (Rivera v. City of New York, 10 A D 2d 72,13 A D 2d 941, revd. after a second trial on the ground there was no proximate cause, 11 N Y 2d 856).

The weakness in this case on the proof of negligence is not on the issue of foreseeability but the failure to prove that defendant YMCA did or failed to do anything at all that contributed to the accident, or that the individual defendant knew or should or could have known that there was a chair arm or other dangerous thing on the shelf.

As the majority states, there could have been no contributory negligence, but that is only a dependent issue albeit treated by the litigants as the main issue. But the trouble again is that excluding the dependent issue does not supply the lack of evidence on the only issue upon which plaintiffs are entitled to prevail, namely, proof of defendant’s negligence.

Accordingly, I dissent and vote to affirm the dismissal of the complaint.

Chief Judge Fuld and Judges Burke and Gibson concur with Judge Bergan ; Judge Breitel dissents and votes to affirm in a separate opinion in which Judges Scileppi and Jasen concur.

Order reversed, etc.  