The opinion
Judgment and order of Niagara County Court and judgments of the North Tonawanda City Court reversed on the law and facts and a new trial granted in the North Tonawanda City Court, with costs to abide the event. Memorandum: The court charged the jury that this infant was not an invitee. No exception was taken. Thus the charge became the law of the case and it was the jury’s duty to follow the instruction, whether it was correct or not. Whether the infant was an invitee while upon the abutment was a question of fact to be determined by the jury upon proper instructions. The measure of the duty of care required of the defendant was dependent upon the status of the infant as an invitee, licensee or trespasser. Under the circumstances and in the interests of justice, we think there should be a new trial. All concur. (Appeal from a judgment of Niagara County Court, affirming two judgments of North Tonawanda City Court, for plaintiffs in negligence actions.) Present — Vaughan, J. P., Kimball, Piper, Wheeler and Van Duser, JJ.