Collester, Lora and Handler. The opinion of the court was delivered by Lora, J.A.D.
Plaintiffs sued the Freehold Township Board of Education, William McCrowhan, a gym teacher, and Claudio Lopez, a fellow student of infant plaintiff Scott T. Clayton, to recover damages for injuries sustained when a baseball bat slipped out of Lopez' hands during a softball game and struck Clayton who was seated on a players' bench along the third base line.
They appeal from a judgment of no cause for action, entered following a jury verdict, and a denial of a motion for a new trial.
On appeal plaintiffs contend: (1) the trial judge erred in allowing defendant Lopez to testify that the schoolboy witnesses for plaintiffs were friends of young Clayton and had teased him; that such testimony was not admissible to show bias or interest on the part of plaintiffs' witnesses; (2) counsel's remarks in summation were improper; (3) the trial judge erred in not granting a new trial motion as to the defendant McCrowhan; (4) the trial judge should have directed a verdict against infant defendant Lopez, and (5) there was plain error in the charge because it inadequately
instructed the jury and had a tendency to confuse them as to material elements in the case, -- the removal of contributory negligence, and the fundamental elements of negligence, particularly as to defendant McCrowhan.
Scott Clayton, a seventh-grader at a Freehold grammar school, testified he was in a gym class softball game being supervised by defendant McCrowhan and was seated on the players' bench along the third base line when defendant Claudio Lopez came to bat. Lopez swung at a pitched ball and the next thing Scott knew he felt something go down his throat and his mouth was full of blood.
The plaintiff further testified that earlier in the game he saw Lopez, while batting, let go the bat which then skimmed across the ground, bounced, and struck a player, Andrew Blumetti, on the foot. He stated that after this first incident in which Blumetti was struck by the bat, the gym teacher, McCrowhan, gave no instructions to any of the students to move from the bench.
Andrew Blumetti testified that while standing next to the bench he observed the bat leaving Lopez' hands as he was swinging; that it bounced off the ground and struck him in the lower calf. He estimated the bench as being 10 to 20 feet from home plate. The witness then described how when Lopez next came to bat, the bat again left his hands and struck plaintiff. He further stated that in games played earlier that month Lopez had let go of the bat when he swung -- "he wouldn't drop it, just let it fly"; that because of this the catcher "as a joke" and "for protection" would retreat behind the backstop whenever Lopez came to bat. He stated this was not done when other players came to bat.
Martin Moore, another member of the gym class, testified that Lopez when at bat usually would throw the bat; that on a prior occasion the teacher, defendant McCrowhan, showed Lopez how to hold the bat and how to finish with his swing. The witness observed the initial incident of that day in which Blumetti was hit. Moore also testified that when defendant was at bat the catcher went behind the backstop.
He stated that when Clayton was injured the bat went out of Lopez' hands as he finished off his swing, went past him and another man, and struck Clayton without hitting the ground.
Kenneth Orenstein, another player, testified that defendant had a tendency to let go of the bat when he swung and the bat would either "go back to the cage or over to the third base side, maybe not as far as the bench but pretty close." He also testified that he caught ...